Church Quiet Title
Church Quiet Title
Church Quiet Title
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Disclaime
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The Young Professionals Council, Georgia Appleseed, and the author(s) (the Committee) present
the information in this Heirs Property in Georgia Attorney Training Manual (the Manual) as a
public service to pro bono attorneys who represent clients with heirs property. The Committee makes
no warranties, express or implied, concerning the information contained in this Manual or other
resources to which it cites. Forms included in the Manual are intended for illustration purposes only;
users of the manual must seek current forms from the appropriate court or agency.
This Manual is not intended to provide legal advice. Non-lawyers should consult a licensed attorney
in all legal matters. This Manual does not create a lawyer-client relationship between the Committee,
and you and/or your client. The Committee, its employees, agents, or others that provide information
on or through this manual will not be liable or responsible to you or your client for any claim, loss,
injury, liability, or damages related to your use of this Manual.
Table of Contents
INTRODUCTION ........................................................................................................................... i
What is Heirs Property? ........................................................................................................... i
ACKNOWLEDGEMENTS ............................................................................................................iv
CHAPTER 1 EFFECTIVE CLIENT REPRESENTATION .......................................................... 1
SECTION 1 WHO IS YOUR CLIENT? ............................................................................................ 1
SECTION 2 WHAT IS YOUR CLIENTS GOAL?............................................................................. 2
SECTION 3 EXAMPLES OF ETHICAL SITUATIONS ........................................................................ 4
EXHIBIT 1: HEIRS PROPERTY INTAKE FORM ................................................................................ 6
EXHIBIT 2: RISK DISCLOSURE LETTER ........................................................................................ 16
CHAPTER 2 TITLE INSURANCE ............................................................................................. 19
SECTION 1 ASCERTAINING THE STATUS OF TITLE ................................................................... 19
SECTION 2 POTENTIAL TITLE ISSUES AND RESOLUTIONS ........................................................ 21
SECTION 3 SOURCES FOR FURTHER ASSISTANCE..................................................................... 25
CHAPTER 3 CLEARING TITLE ................................................................................................ 26
SECTION 1 DETERMINE HOW THE PROPERTY IS TITLED .......................................................... 26
SECTION 2 OBTAIN THE CLIENTS FAMILY TREE ..................................................................... 27
SECTION 3 RETRACE THE CHAIN OF TITLE USING PROBATE RECORDS .................................... 27
SECTION 4 WHAT IF IT IS NOT THAT SIMPLE? ......................................................................... 28
EXHIBIT 1: MAP OF GEORGIA COUNTIES................................................................................... 29
EXHIBIT 2: LAND RECORD INFORMATION FOR GEORGIA COUNTIES.................................... 30
CHAPTER 4 INTESTACY .......................................................................................................... 38
SECTION 1 INTESTATE HEIRS ................................................................................................... 38
SECTION 2 PROBATE ADMINISTRATION ................................................................................... 39
SECTION 3 ADMINISTRATION OF DECEDENTS PROPERTY ....................................................... 40
SECTION 4 CONCLUSION.......................................................................................................... 42
EXHIBIT 1: HEIRS DETERMINATION WORKSHEET .................................................................... 45
EXHIBIT 2: PROBATE / ADMINISTRATION PROCESSES ............................................................. 53
CHAPTER 5 QUIET TITLE ........................................................................................................ 55
SECTION 1 CONSIDERATIONS WHEN COMPETING INTERESTS EXIST IN THE PROPERTY .............. 55
EXHIBIT 1: QUITCLAIM DEED....................................................................................................... 59
EXHIBIT 2: PETITION TO QUIET TITLE ........................................................................................ 61
CHAPTER 6 ADVERSE POSSESSION AND OUSTER IN GEORGIA ................................... 68
SECTION 1 ADVERSE POSSESSION .............................................................................................. 68
SECTION 2 OUSTER .................................................................................................................... 71
SECTION 3 ABANDONMENT ........................................................................................................ 71
CHAPTER 7 PARTITION ........................................................................................................... 72
SECTION 1 APPLYING FOR STATUTORY PARTITION .................................................................. 73
The Georgia Heirs Property Law Center, Inc. (the Center) was founded in 2015, and is
the direct result of the work of Georgia Appleseed. Georgia Appleseed, founded in 2005, is a
non-partisan not-for-profit dedicated to law that serves the public interest. Georgia Appleseeds
Young Professionals Council (YPC) adopted the Heirs Property Project in 2008, the same year
Crystal Chastain Baker was awarded a Cousins Public Interest Fellowship at the University of
Georgia Law School and became the first project director of Heirs Property at Georgia
Appleseed. From there, it has grown into a statewide collaborative effort to improve justice for
owners of heirs property and the development of the Georgia Heirs Property Law Center.
a. To provide legal and technical assistance and economic opportunities to for those
impacted by heirs property;
b. To engage service providers in Georgia to offer pro bono services to address and remedy
problems associated with heirs property; and
This definition is consistent with the historical definition of heirs property and provides
1
O.C.G.A. 44-6-180 (2015).
2
O.C.G.A. 44-6-180(5) (2015).
Georgia laws on descent and distribution related to intestacy can lead to property
ownership being fractionalized among children or siblings, a problem that compounds over
successive generations. The potential hardships of such ownership are many. It is difficult to
rehabilitate, maintain, develop or sell such land. Absence of title undermines the ability to
maximize the use of the property for economic gain and security for the family, such as collateral
to obtain loans or use of the lands timber, mineral or agricultural resources. Property tax
payment lapses and partition sales are other common issues. Heirs property often has social,
cultural and economic impact on the surrounding community.
This 2016 edition of the Heirs Property in Georgia Attorney Training Manual, first
published in 2010 with supplements in 2012 and 2013, is intended to guide non- real estate
attorneys through an understanding of the laws of intestacy and risks associated with heirs
property. It provides tools to help pro bono attorneys navigate through the process of perfecting
title and includes an important section on professionalism and ethics that covers issues that heirs
property may generate. A series of scenarios featuring fictitious heirs property owners illustrate
key points, as well.
This manual is presented as a public service to pro bono attorneys and is intended for
educational purposes only. The forms included are for illustrative purposes only; users of the
manual must seek current forms from the appropriate court or agency, where applicable.
Supplemental tools available for heirs property clients and attorneys include (1) the user
friendly, information manual, Heirs Property in Georgia, that covers such topics as property
basics, steps to protect ones land, and the importance of a will, and (2) Rooted and Grounded:
A Georgia Legal Handbook for Small Farmers and Their Land, to help farmers make informed
decisions to protect assets for future generations. These documents can be downloaded at
www.GaAppleseed.org.
Prior to the creation of the Center, and in these initial formative years of the Center,
attorney volunteers have generously provided professional services pro bono to help
disadvantaged heirs property owners to protect their property interests and to enhance their
economic security. We extend our sincerest appreciation to our volunteer practitioners and to the
many legal volunteers who have helped to bring this Manual to fruition.
Georgia Appleseed Heirs Property in Georgia Attorney Training Manual Page iii
Acknowledgements
The Heirs Property in Georgia Attorney Training Manual was produced under the auspices of the Young
Professionals Council (YPC) of the Georgia Appleseed Center for Law and Justice, in conjunction with the
University of Georgia School of Law, Cousins Public Interest Fellowship on Heirs Property.
We would like to thank the following individuals and organizations for their participation and support of this
project over the life of this publication beginning with its first edition in 2010.
Claude C. Davis, II
Staff Attorney
Veronica M. A. McClendon,
Staff Attorney
Sharon Hill
Georgia Appleseed, Executive Director
Collaborative Partners
UGA School of Law Public Interest Practicum (2010 edition)
Frank S. Alexander, Scott Bryant, Courtney Showell, Sr., and Lauren Zeldin
Cover Photograph
Janice F. Dyer, Auburn University, Department of Agricultural Economics and Rural Sociology
Although you are trying to work out a solution for all landowners, you can only represent one
side/one client. If you are in a situation where you are representing more than one individual,
your role might transform into that of an intermediary rather than an advocate. A lawyer is
permitted to serve as in intermediary subject to applicable Georgia Rules of Profession Conduct
regarding conflicts of interest found in Rule 1.7 and 1.8. Because confusion can arise as to the
lawyers role when each party is not separately represented, as their lawyer you must make this
relationship clear and in writing.1
A lawyer acts as intermediary in seeking to establish or adjust a relationship between
clients on an amicable and mutually advantageous basis; for example, arranging a property
distribution in the settlement of an estate or mediating a dispute between clients. In these
circumstances, the lawyer seeks to resolve potentially conflicting interests by developing and
1
GEORGIA RULES OF PROFESSIONAL CONDUCT Rule (2015).
The lawyer must reasonably believe that the matter can be resolved on terms compatible
with the clients best interests and that each client can make adequately informed decisions in the
matter. Furthermore, the lawyer should find that little risk exists of materially prejudicing the
interests of the clients if the contemplated resolution is unsuccessful and that the lawyer can
undertake common representation impartially and without improper effect on the lawyers other
responsibilities to any of the clients.
In acting as intermediary between clients, the lawyer is required to consult with the
clients on the implications of doing so, and proceed only after obtaining consent based on such a
consultation. The consultation should make clear that the lawyers role is not that of partisanship,
which is normally expected in other circumstances. This consultation should be detailed, in
writing and signed by all parties.
Another situation in heirs property cases likely will involve dealing with unrepresented
family members. Rule 4.3 states in relevant part: In dealing on behalf of a client with a person
who is not represented by counsel, a lawyer shall not: (a) state or imply that the lawyer is
disinterested; when the lawyer knows or reasonably should know that the unrepresented person
misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to
correct the misunderstanding; (b) give advice other than the advice to secure counsel. If you
encounter a family member who is unrepresented and you determine that the situation is not one
where you can serve as an intermediary, your duty is to advise this individual to secure counsel.
You are not to provide any further advice. It is to your benefit to have a signed form stating that
you do not represent this individual.
Your responsibility to the client also includes explaining all of the possible outcomes
associated with clearing title, including its effect on the clients legal ability to remain on the
property, which is of utmost importance in the heirs property context. Rule 1.4 states: A lawyer
shall explain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation, shall keep the client reasonably informed about the status
of matters and shall promptly comply with reasonable requests for information. Almost always
clearing title will have the effect of making the client more vulnerable to competing interests in
the property. Because of this fact, it is your duty to make sure the client is fully educated in
realizing the benefits and consequences of clear title so that the client can make an informed
decision after your representation with regards to the property. Rule 2.1 states: In representing a
client, a lawyer shall exercise independent professional judgment and render candid advice.
Additionally, conflicts will occur when you are faced with families divided on what the
land should be used for in the future. For example, while one part of the family might want to get
immediate profit from the sale of the property, the other part of the family might want to remain
in a home on that property. Part of your duty is to inform your client of all possible options that
become available when title is clear. This will include selling the property, holding the property
in a family corporation, rehabilitating the property, dividing the property among owners. Your
client must be made aware of all possible results and consequences of clearing title through legal
advice and education.
While marketable title is generally the goal, this may not be the best solution based on
the facts of the case. Ultimately, it is the decision of the client to decide whether to pursue this
objective. Rule 1.2 states: Both lawyer and client have authority and responsibility in the
objectives and means of representation. The client has ultimate authority to determine the
purposes to be served by legal representation, within the limits imposed by law and the lawyers
professional obligations. Thus, the lawyer should assume responsibility for technical and legal
tactical issues, but should defer to the client regarding such questions as the expense and concern
for third persons who might be adversely affected. The objectives or scope of services provided
by a lawyer may be limited by agreement with the client or by the terms under which the
Joseph Builder and his cousin, Rita Teacher, have inherited a property interest in a one-
acre lot, in the city of Gordon, which their family has owned for generations. The property is
valued at $50,000. Based on intestacy laws, Joseph, who recently lost his job, has a 55% interest
in the land and Rita has a 40% interest in the land. Rita is able to buy out the remaining co-
owners of their 5% interest. When Rita and Joseph come to you, they want to pursue clear title as
a joint effort.
While Georgia Appleseed prefers to focus on preserving the land for the client living on
the land, in this instance you might be asked to represent both parties. In this situation, before
beginning the process for clear title, it is your duty to first determine the goals of each individual.
Josephs goal might be to consolidate marketable title in their names so that he can obtain a
mortgage to build a new home and live on the family land. Ritas goal might be to sell her
interest in the property for a greater profit than a property with clouded title is worth. If the
parties have conflicting interests, then you must inform them clearly that you will act as an
intermediary to mediate the conflicting goals between the clients, and not as an advocate for
either side. Only after both parties provide written consent, should you proceed with the
representation. If they do not consent, you should not represent both parties.
If you proceed to represent just Joseph in this matter, not only must you inform him of
the risks of losing his property, you must also ensure that Rita fully acknowledges that you do
not represent her or her interests in this matter and that to obtain legal advice she should secure
separate legal counsel. Finally, if they do consent to joint representation, one resolution might be
to tell the clients to raise an in-kind partition so that Joseph can build a home and live on his part
of the land and Rita can sell her portion to a willing buyer.
Betty Farmer, from Darien City Georgia, has lived on the acre of land that has been in
her family since her great-grandfather, John Farmer. The property is valued at $10,000. Based on
Georgias intestacy laws, Betty only owns 95% of the interest in the property that she had lived
on for her entire life, paid out property taxes for the past twenty years, and performed all
required maintenance for the upkeep of the house. She wants to obtain clear title in her name
solely so that she can leave the home to her child in her will.
Many times co-owners that do not live on the land do not have any ties to the property or
the area. These heirs might think they are going to get a lot of money if they force a sale because
they are unaware that with the court costs, lawyer fees, and low property values, they will
actually end up with very little, if anything. However, because they think the land is worth more
than it actually is worth, they do not want to sign over their shares to those who reside on it.
However, it is your duty to inform Betty that a small risk of losing her home exists. If a
newly discovered co-owner forces a partition sale, she does not have the assets to buy them out,
and the court determines that a partition in kind would materially prejudice the property owners,
a third party has the opportunity to dispossess her of her home in the partition sale. Thus, even
though the chances of Betty obtaining consolidated clear title in her name are high, you must
make sure she is educated of all of the outcomes before taking action.
Joey Waiter lives on a 1/3-acre coastal property that he co-owns with his sister, Sidney
Mechanic, and many other heirs. Joey and Sidney each own 35% of the land that is worth
$100,000. Two years ago Joey and Sidney had a disagreement about who inherited their
mothers china. Since that argument, neither side has been able to communicate amicably.
Although Joey asks you to represent him in obtaining clear title to the property so that he
can continue to live on the land and keep the land in the family, it is your duty to inform him that
obtaining clear and marketable title will not solve his problems. First, although he owns a
significant portion of the land, with clear title he is still vulnerable to losing the land if a minority
interest holder sells their interest to a buyer with deep pockets. If the buyer has even a nominal
interest in the land, the buyer can demand a partition sale. If Joey does not have the requisite
funds to buyout the buyers interest, there is a possibility the court may order an open public sale
of the property. Though the Uniform Partition of Heirs Property Act remediates some risk
associated with partition sales, some risk still remains for the heirs property owner.
Furthermore, even if Joey was able to obtain clear title and buy out the minority interest
holders shares of the land, because of their precarious relationship, his sister, Sidney, probably
will not acquiesce to his demands. While Joey has the ultimate authority whether to pursue clear
title, it is your duty to give the client candid and straightforward advice, even if it calls for
solutions that the client may not want to explore.
The Intake Form (Exhibit 1) is a tool for your use in assisting your new client
with heirs property issues. The Risk Disclosure Letter (Exhibit 2) should be
provided to your client to make them aware of the potential risks of seeking
clear title.
Part I of this form is intended to obtain information necessary to allow local organizations to
determine a potential clients eligibility. It is also intended to allow pro bono law firms to
perform conflict searches to determine whether they may represent a potential client.
The remainder of this form (Parts II through IV) is intended to guide the person doing the intake
through a narrative process that is designed to arrive at the answers to the numbered questions.
Below each numbered question is a series of leading questions designed to aid the person doing
the intake in leading a conversation with the individual seeking assistance. Do not feel limited to
the suggested questions.
To the greatest extent possible, please take this approach with the individuals with whom you are
working. Please take as many relevant notes possible and keep all notes on separate pages. This
information will be helpful to the attorneys performing the work for this individual.
Intake Date:
Please fill this form out with the client at your first meeting. If the client has brought in any
original documents, make copies and place them in the clients labeled folder, and ask the client
to place the originals in a safety deposit box or other safe location.
Address: County:
City: State: Zip:
Home Telephone: Other Telephone:
Email Address: Spouse:
RACE/NATIONAL ORIGIN:
Is this your first time talking with an attorney about this matter? Yes No
Zip code:
County:
2. Please attach a copy of a document stating the legal description of the property.
3. How long has the property been in the family?
4. How did the property come into the family?
6. Does the property have any special historical, cultural, or community significance?
7. Briefly describe your personal connection to this land as well as your familys connection to
the land:
11. Briefly describe the immediate area surrounding the property (neighboring properties, uses,
etc.)
Medicaid: Yes No
ASSET INFORMATION:
Provided: Yes No
EXPENSES: (optional)
Source Monthly Payment Amount of Arrearage (if any)
Rent/Mortgage
Electric
Gas
Water
Phone
Childcare
Auto/transportation
Employment Related
Medical / Nursing Expenses
Age / Disability Expenses
Options to suggest:
Have title to the property consolidated into one persons name
Obtain insurable/marketable title
Other (please explain):
10. Do other family members agree with the client on this goal?
If so, who?
11. Is there a pending lawsuit or other legal action concerning part or all of this land?
If so, please describe:
13. How does the client plan to use the property in the future?
Sell Recreation
14. What does the client see as the primary value of the property?
Place to visit Inheritance for children/grandchildren
Place to live (full time / part time) Natural landscape to be preserved
Financial asset/investment Farming
Other(s)
How many owners are accounted for (i.e., can be located) and how many are
unaccounted for (i.e., cant be located)?
27. Are there any agreements (written or oral) among the owners of the property contemplating
the payment of taxes/expenses, propert subdivision process or any other issues?
LEGAL PROCESS
28. Are there any pending court cases?
29. Was property ever legally divided up, or subjected to any legal process?
30. Do you know whether anyone with legal interest to the land has a default on a payment
obligation that could implicate the land?
37. Is anyone outside the family using part of the land, and, if so, (a) is it without permission of
any/all family members, and (b) does the outsider pay for use of the land (and if so, who is
collecting money)?
Notes:
For the purposes of this Risk Disclosure Letter, will be referred to as the
Client, You and/or Your. Client, You and Your shall also mean your agents,
employees, attorneys, insurers, sureties, predecessors, successors, assigns, heirs, executors and
administrators, and each of them.
Based upon the information You provided to us in Your application, we are of the
opinion that You should carefully consider the following information before You decide to
continue to seek clear title to the heirs property located at , belonging to the
recorded title owner (Property).
1. If we cannot identify and locate all of the heirs at law of the Property, we may not be
able to obtain clear title to the Property in Your name;
2. A risk exists that even if all the heirs are located and clear title is obtained it may not rest
solely in Your name. If we cannot obtain the other heirs cooperation and voluntary
agreement to transfer to You all of their legal title and interest in the Property, we will
not be able to consolidate and clear title in Your name only;
3. If clear title to the Property does not exist in Your name only, You face a significant risk
of losing the Property. After the Propertys title is cleared, the chances of partition (a
division of the Property) may increase. Prior to beginning the process to clear title to the
Property, some of the co-owners to the Property might not be aware of their ownership
rights. However, because each co-owner has the right to sue for partition, if additional
co-owners are discovered during this process, there is a greater chance that a co-owner
may bring a partition action. Although, generally speaking, the court prefers an in-kind
partition (dividing the land amongst the co-owners), many times the property in question
cannot practicably be divided into equal parcels, and thus, the whole property is sold and
the profit received from the sale is divided amongst the co-owners proportionate to their
interest in the land. Therefore, You, as the person living on the Property, may risk losing
Your home if another co-owner demands a partition sale of the entire Property; and
4. A court-ordered partition sale typically draws less than optimal value because of the
forced timed conditions of the court sale where there are willing buyers, but court-
ordered sellers. In these instances heirs property owners not only lose their land, and
often the family homestead, but they also tend to fail to capture the full economic value
of the land once the sale is ordered.
Again, while we cannot guarantee the result or outcome of this matter, we will strive to
provide You with the highest quality legal representation and endeavor to exercise our best
judgment at all time. We look forward to working with you in this endeavor.
Regards,
Name:
Title:
(Signature) (Signature)
(Date) (Date)
So the question is, how can you help your client establish good title to real property?
Usually this process begins by looking at the source of such title. In most cases, a homeowner
obtained title to real property by having title transferred to them through a deed. Usually, if this
is the case, the deed should have been filed in a local county deed records, and as long as the
filed deed was properly completed, included a proper property description, and the deed, as filed,
is still readable, good title will be established through a search of the deed records and locating
the deed. Similarly, if someone who owned property dies, and the probate court makes a
determination that the deceased owned the property, the court will make a filing in the deed
records that will establish good title in the heirs of the deceased. Courts may also make a
determination of title in connection with filing orders related to settling title disputes or
bankruptcy. However, even when title is established of record, it is possible for the validity of
such title to be voided in Georgia, for example, if a third party has taken open, continuous and
peaceable possession of the property for at least twenty years (and in some cases, if color of title
is applicable, as little as seven years), the third party may be deemed to have taken title to such
property, by virtue of its adverse possession of the property. (Adverse possession will be
discussed later in this Manual.)
A thorough client interview may help reveal if there will be any issues relating to
whether or not good title was vested in your client, and/or what types of encumbrances should be
In addition to the client interview, a very valuable resource for ascertaining the current
state of your clients title will be the title abstract that will be provided to you by a title examiner
or a title insurance company. The title abstract is a list, typically chronological, of all the
documents that have been filed for record in the deed records that affect your clients property.
Copies of the actual documents listed should also be available to you (and if they are not, then
you should obtain them). The title abstract should contain all deeds, mortgages or security deeds,
which have not been canceled of record, chancery proceedings affecting your clients property
and the prior owners in the chain of title, wills, notices of lien filings (e.g., judgment or statutory
liens), and any local or federal tax liens.
In the commercial real estate context, a lender will require its borrower to provide a
survey of the financed parcel. Residential lenders in Georgia have generally stopped requiring
surveys for their mortgages covering single-family residences, but you should inquire whether
your client could provide you with a survey or some other simpler plat or plan for your clients
property. A good survey will accurately show the location of any improvements on your clients
property, the boundary lines of your clients property, and the location of any easements of
record. If a survey is available, you should review it alongside your title abstract to confirm
accuracy and consistency between the two. Your review of the survey can also confirm the
accuracy of the legal description of your clients property and will reveal if there are any
encroachments. The survey should also indicate whether or not any improvements violate zoning
setbacks or height requirements. The surveyors certification contained on the survey may also
reveal other factual matters that may not otherwise be ascertainable. If no surveys are available
for your clients property, you should confirm whether any other plats or plans listed in the title
abstract exist. If so, copies of these plats are of record and should be obtained. Such plats or
plans can reveal similar issues as an accurate survey (although a survey will probably be more
recently accomplished and therefore more up-to-date).
As a supplement to, or possibly in lieu of your review of a survey, you may visit your
clients property to conduct a visual inspection. Like a review of a survey, a visual inspection
could reveal the location of any potential encroachments (e.g., overhangs, boundary fences, or
Typically, when a property owner obtains third party financing for the acquisition or
development of the property, the owners obligation to repay the loan will be secured by the
lender taking title to the property through a deed to secure debt or a security deed. Although rare
in Georgia, this repayment obligation is secured by a true mortgage lien on the property. Once
the loan has been paid in full, the lending party has an obligation to reconvey title back to the
property owner/borrower. On occasion, a note that has been paid in full may have a
corresponding security deed that has not been properly reconveyed.
If the client originally granted a lending institution an old security deed of record, you or
the client should be able to request a cancellation of security deed, release or quit claim deed
from the lending institution. There is a strong possibility that the lending institution that made the
original loan has now been sold and therefore is no longer the holder of the promissory note
representing the debt owed. The client may have old bills or related documentation indicating
who was the last known holder or servicer of the promissory note. If the client does not have any
such documentation, the original lending institution should be able to assist in tracking down the
proper contact of the last known holder or servicer of the promissory note. Alternatively, the loan
may have been given to a prior owner of the clients property. In that situation, the client will be
unable to help with the proper contact information to obtain the release or quitclaim deed. You
should obtain a copy of the recorded security deed, as that should contain the name of the
original lending entity and possibly a primary contact person.
Once the release or quit claim deed has been obtained from the last holder or servicer of
the promissory note, be sure to confirm that the old security deed is properly referenced and that
the legal description matches the legal description of the clients property. Once a release or quit
claim deed with the proper title references is recorded, the old security deed will no longer
encumber the property and the security deed will be removed as an exception to the title
insurance policy.
It is possible that the lending institution does not exist anymore or that the final holder or
servicer of the promissory note is impossible to track. A title insurance company will assist in
Similar to a lien created by a security deed, there may be other liens on the clients
property representing security for money owed to third parties. For example, the County Board
of Tax Assessors will periodically assess the property for real estate tax purposes. A tax lien is
imposed on the property for taxes due and payable to the County. While a title insurance policy
will always make an exception for amounts due but not yet payable, if there are any exceptions
listed for prior tax years, these can be removed by obtaining the payoff amount from the County
tax commissioners office and paying in full the taxes due (including any interest and penalties).
A statutory mechanics lien will be created to secure payments owed for construction
work done on the property. This lien can be discharged through payment in full of any amounts
owed to a particular vendor and the recording of a proper acknowledgment of such payment in
the deed records. Under Georgia law, an action to collect on a claim must be filed within 12
months of when the claim became due. If the client indicates that there has been no work done
to the property within the past 12 months, then an exception for any mechanics liens may be
removed from the title insurance policy by having the property owner provide an affidavit to the
title insurance company indicating that there has been no work done to the property in a certain
fixed amount of time. If the person or entity claiming the lien does not file the statutory notice in
the deed records in a timely manner, the title insurance company should disregard the claim.
Your client or a prior owner in your clients chain of title may have obtained title to the
property through the death of one or more family members. If the family member died intestate,
then there may be no document of record evidencing the passing of title upon the decedents
death. Heirs may be established in Georgia through a judicial determination or filing an affidavit
of descent in the deed records.1 If there is not a judicial determination or affidavit of descent of
record, then your clients title abstract will not show title properly vesting with your client, and
your client will not be able to obtain title insurance covering the property. If there is a break in
your clients chain of title as a result of the property passing to your client via intestate
succession, then a proper affidavit of descent should be executed and filed to evidence your
clients rights in the property as the heirs of the decedent. For more details on the proper form of
affidavit of descent refer to a title insurance company.
1
Note that certain states and certain title companies might have a strong preference for a judicial determination of
heirs versus recording an affidavit of descent. You should inquire of the title company you are working with before
proceeding down either path, although the judicial determination of heirs is considered in many states to be a more
definitive determination.
Unlike other liens and encumbrances listed above which include documents of record
evidencing such lien, an adverse possession claim against your clients property may impact your
clients title without a corresponding recorded document. Adverse possession is a doctrine by
which a property owner may lose rights in his property by failing to take action against others
who have taken action with respect to the owners property. An adverse possession claim could
negatively impact your clients title in the context of a boundary dispute or encroachment. Refer
to the Adverse Possession Chapter for more information about adverse possession.
To insure against potential adverse possession claims, a title agent will likely require an
affidavit from your client stating that no other parties are in possession of the premises. Be sure
to confirm that your client appears to be the only occupant during your visual inspection of the
property. If you do have a survey available, you should confirm that the legal description on the
survey matches the legal description on your clients deed. Conforming legal descriptions should
remove any doubts raised in a boundary dispute. If there is a legitimate boundary dispute, an
accurate survey and title search of the land abutting your clients property should also be
obtained. If you believe that there is a legitimate potential adverse possession claim against your
clients property, it may need to be resolved through a suit to quiet title in the county Superior
Court where the property is located.
Under Georgia law, real estate passes to the heirs of a decedent at the time of death.
Typically, the property will pass to the decedents heirs through the probate courts, but until the
will is probated, the real estate is treated as if the decedent died intestate. Your title abstract may
reveal former or on-going probate disputes relative to your clients property. If a decedent in the
chain of title to your clients property died intestate, the decedents heirs may have filed an
Affidavit of Descent or completed a judicial heirs determination. Refer to the Intestacy Chapter
for more information about clearing title with respect to probate issues.
Standard coverage under a title insurance policy typically includes coverage of risks
associated with erroneous or inadequate legal descriptions and other scriveners errors. If the title
agent uncovers such an error, the title company may require the recording of a corrective deed to
fix the error. Typical scriveners errors include small typographical errors in the legal
description, a misspelling of a grantors name, and the omission of the date of execution. A
corrective deed should state on its face that it is intended merely to correct a specifically named
scriveners error. Once recorded, the correction will relate back to the date of the original deed
that the corrective deed was correcting. You should avoid re-executing a new deed to fix any
prior scriveners errors since a new deed will be effective as of the new execution date. Note that
your client may need to provide evidence of ownership of his or her property as of a certain date.
Recording a new deed merely to correct a scriveners error could undermine this objective.
The corrective deed can be used to fix typographical errors in the legal description, but
A propertys lack of access to a public road is another defect that will often not be
apparent by simply reviewing record title. Usually this defect is easier to spot if you have a
survey, which would enable you to determine whether the propertys driveway is located
completely within the perimeter of the propertys boundary lines, and/or whether the road that
the driveway connects with is a public road. When absence of either of these elements is present,
a potential problem exists, since the third party that owns the land on which the driveway or the
road is located might be in a position to lawfully interfere with vehicular access to your clients
property. If this problem exists, you should have a title search done on the abutting landowners
property, to see whether the owner of your clients property may have been granted an easement
over the applicable driveway or road. If there is no such easement of record, then you can try to
approach the third party abutter for an easement. If you are successful getting the third party
abutter to agree to giving your client an easement, you can employ the process for creating an
easement which is set forth in Part 2.9 Encroachments/Disputes with Abutters below. If the
third party abutter refuses to provide an easement, your client may be able to assert a claim of
adverse possession.
Generally, risks associated with zoning regulations are not covered by a title insurance
policy since zoning regulations are not considered an encumbrance on real estate. If your due
diligence on your clients property reveals a potential zoning violation, you may request
additional zoning coverage through a zoning endorsement for an additional premium. A zoning
endorsement will typically protect your client if the zoning classification is something other than
what is listed in the endorsement or the listed permitted uses are prohibited by the existing
zoning regulations. The title company may require additional items, including a survey and some
zoning regulation supporting documentation. A zoning endorsement is relatively expensive
compared to other endorsements you may encounter. You should discuss the costs and benefits
with your client prior to obtaining the zoning endorsement from the title company. Also keep in
mind that if there is a zoning violation on your clients property, the zoning endorsement will not
clear the violation. Zoning relief would typically be obtained through the municipality. Such
relief is beyond the scope of this Manual.
The clients property may have a building or other structure encroaching onto an
abutters property. Similarly, an abutter of the client may be encroaching onto the clients
property. In either case, it is unlikely that the title abstract will reveal any encroachments. Thus,
any encroachments would have to be revealed through the client interview, a visit to the clients
property, or a through a review of any surveys or plats of the property.
It is also important to keep in mind that if an encroachment has been in existence for an
extended period of time, then an adverse possession claim may be possible. Refer to the Adverse
Possession Chapter below.
John Doe has lived in the family home in Fulton County since his mothers death in
1985. The last deed to the property was recorded in 1950 and shows Johns deceased
grandparents as the joint purchasers of the property. His grandfather died in 1960, his
grandmother died in 1965 and his father died in 1982. He never had any siblings.
In this scenario, John Doe is not the owner of record. While he may have legal title, he
does not have record title. You must recreate the chain of title so John can prove that he is the
owner of the property. Below are the necessary steps to bring a chain of title up to date and prove
that your client has legal title. In addition to the steps outlined below, use the Heirs
Determination Worksheet (Exhibit 1) attached in Chapter 4 to serve as a guide.
The deed should provide a legal description of the property owned, identify the owner(s)
of record and specify how the property is titled (i.e. joint tenancy with rights of survivorship,
tenants-in-common, life estate, etc.).1 Ideally, the client will be the owner of the property on the
deed, either solely or jointly. In this case, there is no problem with proving legal ownership.
Often the most recent deed will not reflect the client as the record owner. As explained
above, no deed is required in Georgia to transfer land title to a beneficiary upon the death of the
owner. Furthermore, many families do not probate an estate because they are unaware of the
1
There are two types of multi-party ownership. One is joint tenancy with right of survivorship, in which the
property automatically passes to the surviving joint tenant upon the death of the first joint tenant to die. The other is
tenancy-in-common, in which the deceased tenants interest does not automatically pass to the survivor but instead
passes under the terms of the deceased tenants will or by law if there is no will.
With a life estate deed, the life tenant will have the right to enjoy the property during his lifetime and, upon his or
her death, the property will pass to the remainderman. Typically, a parent or parents hold a life estate for their
lifetimes and then, upon the death of the surviving parent, the property passes to the children. If a child predeceased
the surviving parent, his remainder interest might be extinguished or might pass to his estate, depending on the
language in the deed.
In our example, the deed showed John Does grandparents as the owners of the property.
To verify that John Doe has title to the property, you must establish how the property passed
with a review of Johns family tree.
The probate records will indicate whether the deceased had a will and, if so, how his
assets were distributed. If there was no will, Georgias law of intestate succession determines
how a decedents assets will pass. Refer to the Intestacy Chapter, Section 1 for an explanation of
Georgias intestacy laws.
If there were no probate proceedings, you will need to file a petition for probate of the
owner of records estate. Refer to the Intestacy Chapter, Sections 2-3 for a discussion of probate
proceedings. If you find that title passed from the owner of records estate to the client through
some other person or persons, then you will need to repeat this step until title is vested in the
decedent.
In our example, the property was owned by John Does grandparents as joint tenants
with rights of survivorship. When his grandfather died, the property passed automatically to his
grandmother, and she died owning a 100% interest in the property. Note that if his grandparents
had owned the property as tenants-in-common, the half interest owned by Johns grandfather
would not automatically have passed to his grandmother. Rather the interest would pass pursuant
to his will or pursuant to the law of intestate succession.
Let us assume you find that intestate probate proceedings for Johns grandmother were
indeed initiated in Fulton County. The property passed to Johns mother who was an only child.
John Does mother had a will in which she bequeathed the property to him, but there were no
probate proceedings. You will need to file the mothers will and initiate a probate petition in
Refer to the Intestacy Chapter, Section 2-3 for a detailed discussion of probate
proceedings.
On the one hand, the other owners might be willing either to quitclaim their interests in
the property or to assign them to John. This would require a deed in which all the parties join to
convey 100% of the title to John. Neither one would unduly complicate the proceeding.
It may be, however, that other family members are unwilling to give up their interests in
the property. In such cases, you may need to compute the amount that Johnand his mother
expended to maintain the property and pay the taxes since the death of the surviving grandparent.
If the other family members are heirs to fractional interests, they are responsible for their ratable
share of those expenses. The expenses may well exceed the value of the property altogether, in
which case the family members may be willing to grant their interests to John in return for a
release from the ratable share of the expense. (The rental value of the property is also a factor
that might have to be taken into account, and might require separating those expenses reasonably
allocable to a tenant from those usually allocated to a landlord.) It is also possible that John may
have to pay some of his cousins for their interests in the property.
In the worst case, it may be impossible to locate fractional owners of property. The best
solution here would probably be an action to partition the property (Refer to the Partition
Chapter), though some practitioners have also let properties go through tax sale (Refer to the
Georgia Tax Sales Chapter 8, Section 2.), which enables their clients to repurchase the properties
for a nominal amount and obtain title.2
2
Note that purchasing a property through a tax sale does not provide the purchaser with clear title to the property.
1.1 Group I
First to members of a class (Group I) consisting of the decedents spouse and children.
The spouse takes the same amount as each of the decedents children, but never less than a third
(1/3) of the estate. For example, if there is a surviving spouse and three children, the spouse will
receive a third (1/3) and each child will receive two-ninths (2/9) of the estate. Descendants of
children who predeceased the decedent take the share of their deceased parent per stirpes. In
other words, if one of the three children is deceased but had two children of his own, the children
of the deceased child will each receive one-ninth (1/9) of the estate (half of their deceased
parents two-ninths (2/9) interest). If the deceased child does not have any children, the spouse
and the surviving two children would then each receive a third (1/3) of the estate.
1.2 Group II
If there are no members of Group I, then equally to members of a class (Group II)
consisting of the decedents surviving parents.
If there are no members of Group II, then equally to members of a class (Group III)
consisting of the decedents surviving siblings, per stirpes, and if none, equally to the decedents
surviving nieces and nephews, per stirpes.
1.4 Group IV
If there are no members of Group III, then equally to the members of a class (Group IV)
consisting of the decedents surviving grandparents, or all to the survivor of them.
1.5 Group V
If there are no members of Group IV, then equally to members of a class (Group V)
consisting of the decedents surviving uncles and aunts, per stirpes, and if none, equally to the
decedents surviving first cousins, per stirpes.
To begin the administration process, one or more persons must be appointed by the local
probate court as personal representatives.1 An interested person may petition the probate court to
be appointed the personal representative by filing letters testamentary with the probate court of
the county of domicile of the decedent, or if the decedent was not domiciled in Georgia at their
death, one may petition the probate court located in the county where any of the decedents
property is located.
In an intestate estate, the surviving spouse or sole heirs is entitled to serve as personal
representative, unless disqualified. Otherwise, the person selected by a unanimous vote of the
heirs is entitled to serve, unless disqualified. When no such unanimous selection is made, the
probate court will make the appointment that will best serve the interests of the estate,
considering the following order of preferences: (i) the surviving spouse, unless an action for
divorce or separate maintenance was pending between the deceased intestate and the surviving
spouse at the time of death; (ii) one or more other heirs of the intestate or the person selected by
the majority in interest of them; (iii) any other eligible person; (iv) any creditor of the estate; or
(v) the county administrator. A personal representative in Georgia does not have to either be a
Georgia resident or a citizen of the United States. Additionally, a personal representative in
Georgia may also serve without an attorney, though seeking the help of an attorney to advise and
assist in this process is recommended.
The individual seeking appointment must file a petition with the probate court in the county
where the decedent resided or, if the decedent did not maintain a regular residence in Georgia, in
the county where the decedents real property is located. The procedure available and petition
required varies depending on the type of probate that is appropriate. Please visit the website of
the Judicial Branch of Georgia (http://www.gaprobate.org/forms_word.php), which has each
probate administration form in a format that is easy to download. The personal representatives
identification of each of the decedents heirs in the petition will provide a legal document upon
which title insurers can safely rely when certifying title. Along with the petition, the person
1
In Georgia, the term personal representative includes executors of estates for people who died with a will and
administrators of estates for individuals who died intestate, or without a will.
Before filing a petition, an attorney for an aspiring personal representative should always
contact the local probate court to ascertain the filing fees and any local nuances that must be
followed. Filing fees are set by statute, but there are local assessments that may vary from county
to county.
Once appointed, the personal representative steps into the shoes of the decedent and has
full power to manage estate assets, although certain actions, such as the sale of certain business
interests or real estate, require court approval.
The decedents property can be broken down into two categories - probate assets and
non-probate assets.
(a) Probate Assets. Probate assets are those that pass according to the decedents will or by
intestacy if the decedent did not have a will. Probate assets may include real property, personal
property, and other forms of property titled in the decedents name alone. Real Property consists
of all interests in real estate. Personal Property is everything else. Upon the appointment of a
personal representative, title to the real property vests in the personal representative, who holds
the real property in trust as a fiduciary for the heirs at law. As a result, real estate is generally not
considered part of the estate unless the personal property is insufficient to pay the decedents
debts and taxes owed by the estate. In most cases, particularly where many years have passed,
the decedents only remaining asset will be the real property. In the absence of having a personal
representative, title to real estate in Georgia automatically passes and vests in the heirs or legatee
upon the death of the owner. As a consequence, in many cases where the decedent only owned
real estate, no one petitions to have the estate probated until an heirs requires a title that is
marketable and documented in the land records. This creates a problem with the ability to pass
clear title to the property because the chain of title is not properly memorialized in the land
2
This bond, if required and not waived, must be posted in the amount of two times the value of the estate. In
instances where a commercial surety licensed in Georgia is used to post bond, the mere value of the estate is used
(rather than two times the value of the estate). For all purposes the value of the estate shall include the value of the
personality only; however, where real property is sold and converted into personal assets, such as cash, this value
shall be added to the value of the estate.
3
As an example, the Probate Court in Fulton County charges $90 for the filing of the Petition, $15 for the Indigent
Relief Fund, $3 for the Law Library, $3 for the Alternative Dispute Resolution fund, $2 per page for the Petition and
the Letters of Administration, $2 for the Oath and $90 if the Administrator provides notice in the local newspaper.
To find the contact information of a local probate court, please visit http://www.gaprobate.org/find_court.asp.
(b) Non-probate Assets. Non-probate assets are those that pass by operation of law or by
contract. The most common examples of non-probate property include: (i) property owned as
joint tenants with rights of survivorship where there is a surviving tenant; (ii) property owned as
tenants by the entireties by the decedent and the surviving spouse; (iii) assets that pass by way of
beneficiary designation other than to the decedents estate (ex. life insurance, retirement plans,
annuities); (iv) life estates; and (v) bank or brokerage accounts with payable-on-death or transfer-
on-death designations. For purposes of the probate process, a personal representative is only
concerned with the probate assets, and the personal representatives first duty is to inventory and
collect all probate assets owned by the decedent.
Before filing a probate for a client, always verify with a title insurance company the
procedure to follow. Be aware of the different types of administration processes. For guidance,
attached to this chapter is the Probate / Administration Processes (Exhibit 2), a list of the
different types of processes available for the decedents estate when either a will exists or when
it does not.
3.3 Inventory
In addition to identifying all probate assets owned by the decedent, the personal
representative must also identify all of the decedents debts, object to invalid and time-barred
debts, and pay all valid debts and taxes owed by the decedent or the estate from the estate assets.
This process begins with the publication of a notice to the decedents creditors within
sixty days of the date the personal representative takes office. This notice must run for four
consecutive weeks in a local newspaper in the city in which the estates probate court is located
and is usually paired with a notice to debtors of the estate; forms of these short notices can be
found at the local probate court. Creditors of the decedent have three months following the fourth
publication of the notice in which to make their demands known to the personal representative.
Creditors who do not meet this requirement lose all right to equal participation with creditors of
Although a testator in Georgia may generally disinherit his surviving spouse and
children, Georgia has carved out an exception in the interest of public policy. A surviving spouse
and each minor child of the decedent may file a Petition for a Years Support, which asks that
specified property, in an amount sufficient to maintain the standard of living of such individuals
for one year, be awarded to the spouse and/or children, which may include the right to remain in
the home they shared with the decedent.4 In some cases, title to real property can pass in its
entirety to the surviving spouse and/or the minor children through the Years Support statute,
without the need for probate administration. The practitioner is well advised to consider Years
Support to determine whether it is the most efficient, and perhaps alternative, method to achieve
the clients goals. The years support award is generally free of all unsecured debts of the estate
and takes precedence over any disposition by the Will. All interested persons must be given
notice of this petition.5 Years Support is beyond the scope of this manual. Please consult an
attorney well versed in estate planning for this determination.
Once the personal representative has identified all of the probate assets, settled the valid
debts and paid the taxes, he or she may make final distributions to the decedents heirs. An
account of all receipts and disbursements made during the course of administration must be filed
with the court, unless waived by the court with written, unanimous consent of all heirs. All real
and personal property will be distributed in accordance with the intestate distribution rules
described above.
3.7 Deed
Although title to real estate vests automatically without the necessity of a deed, it is far
preferable to prepare and record a deed to evidence title. The deed will create a formal record
that can easily be reviewed for future reference. (The lack of a deed in a prior probate is often the
reason the current owner has difficulty in establishing his or her title.).
Section 4 Conclusion
In conclusion, the goals of probate administration are to distribute all property and to
4
However, a testator by will may make provision for the spouse in lieu of Years Support, in which case the
surviving spouse must make an election to either take the assets bequeathed to her by the testator or file a petition
for Years Support.
5
Additionally, the lien of certain ad valorem taxes on real estate is divested by the award of property as Years
Support.
B.
Name of Proposed Petitioner:
Address:
a. Name of decedents surviving spouse, if any (NOTE: Do not list a person from
which the decedent was divorced at time of decedents death):
b. If a person is named in (a) immediately above and that person has died since the
decedents death, list the date of death of the person named in (a):
c. (This question relates only to the right to serve as administrator.) If there was a
surviving spouse who is still alive, was an action for divorce or separate
maintenance pending between the decedent and the surviving spouse at the time
of decedents death? Yes No Unknown
Living Children
Deceased Children
Name:
Date of Death:
County of Domicile at death:
..
Name:
Date of Death:
County of Domicile at death:
..
Name:
Date of Death:
County of Domicile at death:
..
Name:
Date of Death:
County of Domicile at death:
Living Children
Deceased Children
Name:
NOTE: IF ALL OF THE CHILDREN OF DECEDENT ARE ALIVE, YOU MAY STOP.
Living Grandchildren
Deceased Grandchildren
Name:
Date of Death:
County of Domicile at death:
Name of Parent:
(Mother)
(Father)
Name:
Name:
Date of Death:
NOTE: IF ALL OF THE AUNTS AND UNCLES OF THE DECEDENT ARE ALIVE, YOU
MAY STOP.
The more remote degrees of kinship are determined by counting the number of steps in the
chain from the claimant to the closest common ancestor of the claimant and the decedent, and
from said ancestor back to the decedent. The sum of the two chains is the degree of kinship. The
surviving relatives who have the lowest sum are in the nearest degree and thus inherit the estate
equally.
Solemn Form Probate This procedure requires notice to all heirs and becomes binding upon all
parties immediately upon entry of the final order. Heirs are those persons who would inherit
the estate if there were no lawful Will; heirs may or may not be beneficiaries under the Will. The
notice requires anyone having a legal cause to object to or contest the alleged Will to file the
objection or contest before a certain deadline. The original Will must be filed with the petition,
and proof of the proper execution of the will must be provided by either a self-proving affidavit,
Interrogatories or Proof of Witness. All heirs must be duly served or must acknowledge service.
The Court will appoint a guardian-ad-litem for each minor or incapacitated heirs.
Common Form Probate This procedure may be done without notice to heirs but does not become
binding for four years after the appointment of the Executor. The requirements of providing the
original Will and proof of proper execution are the same as with the Solemn Form Probate. Heirs
and others may file an objection or contest at any time up to four years after common form
probate.
Probate Of Will In Solemn Form/ Letters Of Administration With Will Annexed If there is a
Will but the named Executor is either unable or unwilling to serve, an Administrator C.T.A (with
Will annexed) must be appointed. Any nominated Executor still living must sign a declination, or
there must be testimony that the Executor is unable to serve. A majority of the beneficiaries may
select the Administrator C.T.A. The Court will appoint a guardian-ad-litem for each minor or
incapacitated heirs.
Will Filed, Not For Probate If there is no property to pass under the Will, probate is not
necessary. However, the Will of the decedent must be filed with the Probate Court. Real estate,
unlike joint bank accounts, may not automatically pass to a surviving co-owner. If the only
property in the estate is an automobile, title may be transferable through the Tag Agent without
probate being necessary. There is no cost to file a Will not for probate.
Permanent Administration This procedure requires notice to all heirs. A surviving spouse or sole
heirs is entitled to serve as Administrator, unless disqualified; otherwise, the person selected by a
majority of the heirs is entitled to serve, unless disqualified. Administrators must post bond and
file inventories and returns, unless ALL heirs consent to a waiver of those requirements. If ALL
heirs consent, the Administrator may be given additional powers and authority. Guardians of
minor or incapacitated adult heirs may acknowledge service, consent to selection and consent to
waive requirements, provided the guardian is not the petitioner.
Temporary Administration Notice to the heirs is not required, but a majority of the heirs may
select the Temporary Administrator. Powers are limited to collecting and preserving the assets of
No Administration Necessary If all debts of the decedent have been paid (or if all creditors
consent or fail to object after notice), if there is no other need for formal administration, and if
the heirs have all agreed on how the estate will be divided, this proceeding may be filed. All
heirs must sign an agreement disposing of the entire estate; guardians of minor or incapacitated
adult heirs may execute the agreement. Creditors who have not consented in writing must be
given legal notice of the filing.
If the other owners are identifiable and can be located, will they execute quitclaim
deeds to the client? Such an execution will release any and all interest the other owners might
have in your clients property. See Exhibit 1.
If there are persons other than the client with ownership interests, and they are not
willing to sign quitclaim deeds or they cannot be properly identified or located, a bill to quiet
title to the property may be brought in the court of the county where the property is located.
(a) The purpose of a conventional quia timet is to cause to be delivered or canceled any
particular instrument which has cast a cloud over the clients title to the land or subjects the
client to potential future liability or present annoyance (technically, the client must ask the court
to pass upon the validity of the instrument, decree it to be of no effect, and decree title in the
client, rather than actually ask the court to cancel the instrument). The basic elements of a
conventional quia timet suit to quiet title include:
(i) The client holds some current record title or current prescriptive title to the land,
and the client petitions for cancellation of a particular instrument; and
(ii) The client is in actual possession of the land (if the defendant is in possession, an
action for ejectment is the proper suit), or the land is considered wild lands.
(b) The purpose of a quia timet against all the world (also known as in rem) suit to quiet title
is to conclusively establish the title of the land in the client, to determine all adverse claims
against the land, and / or to remove any particular cloud upon title to the land. The proceeding
may be against all persons known or unknown who claim or might claim title to the land,
whether the petition discloses any known possible claimants, so that there shall be no occasion
for land in this state to be unmarketable because of any uncertainty as to the owner of every
1
O.C.G.A. 23-3-40 (2015).
2
O.C.G.A. 23-3-60
(i) The client may be in actual and peaceable possession (no constructive possession
permitted), and the Land may be vacant; and
(ii) The client claims an estate of freehold present or future or any estate for years (so
long as no more than five years have lapsed in such estate for years) [includes persons holding
land under tax deed]
The process for determining whether to pursue a conventional quia timet or quia timet
against all the world quiet title action is as follows.
(a) Possession of Property. Determine who (if anyone) is in possession of the subject
property. For a conventional quia timet suit, the client must be in possession to maintain an
equitable petition to remove a cloud upon his title. If the defendant is the party in possession, the
court will dismiss the suit because the plaintiff has an adequate remedy at law (ejectment ).4
However, if the land is wild (that is, it is unenclosed, uncultivated, and remaining in a state of
nature), the client need not be in possession to maintain a conventional quia timet suit.5 For a
quia timet against all the world suit, there is no requirement that the client be in possession of
the land and there is no requirement that the land be vacant or wild.6
(b) Title to Property. Determine clients claim of title to the subject property. For a
conventional quia timet suit, the client must assert that he holds some current record title or
current prescriptive title beyond an expectancy of interest, in order to maintain the suit .7 For a
quia timet against all the world suit, there is also the requirement that the client assert that he
holds some current record title or current prescriptive title, and not only an expectancy, in order
to maintain the suit; however, the Quiet Title Act does not require as strong a proof of title as
is required in an ejectment action.8 However, Georgia courts have ruled that an easement is
insufficient to support a claim of title necessary for bringing a quiet title suit.9
(c) Cloud to Title. Determine whether another individual claims to have title to the property
based on a specific instrument (such as a deed). For a conventional quia timet suit, there must be
a specific instrument that constitutes a cloud to title. For a quia timet against all the world suit,
there is no requirement that a specific instrument creating a cloud be identified.
O.C.G.A. 23-3-42 specifies when an instrument constitutes a cloud to title. The statute
3
Id.
4
Hale v. Turner, 189 S.E. 10 (1936).
5
Hopdins v. Roach, 56 S.E. 303 (1906).
6
O.C.G.A. 23-3-60.
7
Gilmore v. Hunt, 73 S.E. 364 (1910); In re Rivermist Homeowners Association, 260 S.E. 2d 897 (1979).
8
O.C.G.A. 23-3-60; see In re Rivermist Homeowners Association, 260 S.E. 2d 897 (1979); Smith v.
Georgia Kaolin Co., 449 S.E. 2d 266 (1984).
9
Dykes Paving and Construction Co. v. Hawks Landing Homeowners Association, 647 S.E.2d 579 (2007).
(i) He cannot immediately or effectually maintain or protect his rights by any other
course of proceeding open to him;
(ii) The instrument sought to be canceled is such as would operate to throw a cloud of
suspicion upon his title and might be vexatiously or injuriously used against him;
(iii) He either suffers some present injury by reason of the hostile claim of right or,
though the claim has not been asserted adversely or aggressively, he has reason to believe that
the evidence upon which he relies to impeach or invalidate the same as a claim upon his title may
be lost or impaired by lapse of time.11
(d) Petition to Quiet Title. A form of a petition to quiet title is attached hereto as Exhibit 2.
(i) A petition to commence a conventional quia timet quiet title action shall be filed
in the county in which the defendant resides or, if the defendant is not a resident of Georgia, the
county in which the land is located, and shall contain and/or allege all of the following:
(2) Description and origin of the clients possession and ownership (or claim of
ownership) of the property; and
(3) Specific identification of the instrument that creates a cloud on the title.1011
(ii) A petition to commence a quia timet against all the world action12 shall be filed in
the county in which the property is located and shall contain and/or allege the following:
(2) Description and origin of the clients possession and ownership (or claim of
ownership) of the property;
(3) Statement of whether the clients interest is based upon a written instrument
(whether the same be a contract, deed, will, or otherwise) or adverse possession
or both;
(4) Description of all adverse claims of which the client has actual or constructive
notice;
10
Id.
11
O.C.G.A. 23-3-42 (relief is granted in those cases where the invalidity of the instrument creating the
cloud appears invalid on the face of the instrument or is proven by outside facts O.C.G.A. 23-3-41).
12
Quiet Title Act, O.C.G.A. 23-3-60.
(6) If the proceeding is brought to remove a particular cloud to title, statement of the
grounds upon which the cloud is sought to be removed.13
With the petition, the following must also be filed: a plat of survey, a copy of the
immediate instrument(s) of record or otherwise known to the client, if any, upon which any
person might base an interest in the land adverse to the clients.14 The Georgia Supreme Court
has held that this provision is limited to requiring the client to include with the petition the most
immediate instrument upon which his interest is based.15
Also, the client must file a notice of lis pendens when the petition is filed.16 The court,
upon receipt of the petition, forwards the petition to a special master.17 The special master first
determines who is entitled to notice (includes adjacent landowners and all adverse claimants).
The special master will cause process to be served personally on all persons entitled to notice and
to all persons whom the action may concern.18
If process cannot be served personally, the special master must request that the court
issue an order allowing service by publication. The notice must be printed in the newspaper
where the sheriffs advertisements appear for the forum county and must contain the name of the
petitioner and respondent, a caption setting forth the court, the character of the action, the date
the action was filed, the date of the order for service by publication, a notice directed to the party
served by publication commanding him to appear at the court within 30 days of the date of the
order for service by publication, and the notice must be signed by the clerk.19
The special master next ascertains the extent of the petitioners title and reports his
findings to the superior court. The superior court then issues a final decree, which must be
recorded in the clerks office. Additionally, a marginal reference to the decree must be entered
upon any recorded instrument stated to be affected by the decree.20 Prior to the special master
issuing his decree, any party has a right to demand a jury trial.21 Any person not previously a
party has a right to intervene within 30 days from the entering of the final decree.22
13
O.C.G.A. 23-3-62.
14
Id.
15
Capers v. Camp, 244 Ga. 7 (1979).
16
O.C.G.A. 23-3-62.
17
O.C.G.A. 23-3-53.
18
O.C.G.A. 23-3-65.
19
O.C.G.A. 23-3-66.
20
O.C.G.A. 23-3-67.
21
O.C.G.A. 23-3-66.
22
O.C.G.A. 23-3-69.
Attn:
QUITCLAIM DEED
STATE OF
COUNTY OF
WITNESSETH that Grantor, for and in consideration of the sum of TEN AND NO/100
($10.00) DOLLARS in hand paid at and before the sealing and delivery of these presents, and
other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, by these presents does hereby remise, convey and forever QUITCLAIM to
Grantee
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot
, District, County, Georgia, and being more particularly
described in Exhibit A attached hereto and incorporated by this reference
herein; TOGETHER with all of Grantors right, title and interest in and to any and
all easements, rights-of-way, appurtenances, or rights appertaining or in anywise
belonging thereto, including, without limitation, any portion of the Property lying
within the right-of-way of any publicly dedicated street, roadway or alleyway; and
TOGETHER with all of Grantors right, title and interest in and to any and all
improvements, structures or fixtures located therein or thereon (the Property).
TO HAVE AND TO HOLD the Property to Grantee, so that neither Grantor nor any
person or persons claiming under Grantor shall at any time, by any means or ways, have, claim
or demand any right or title to the Property, or any rights thereof.
By:_ (SEAL)
Unofficial Witness Name:
Notary Public
My Commission
STATE OF GEORGIA
*
_R_I_C_H_A R_D J_E_R_R_Y M_C L_E_O_D,
*
Plaintiff,
* CIVIL ACTION FILE
v.
*
ALL PERSONS KNOWN OR UNKNOWN
* NO.
WHO CLAIM OR MIGHT CLAIM
ADVERSELY TO PLAINTIFFS TITLE TO *
REAL PROPERTY KNOWN AS
Richard Jerry McLeod
_GR_OO_V_ER_V_I_L_L_E M_E_T
_,HODIST CHURCH c/o *
_B_R_O_O_K_S COUNTY
GEORGIA, *
Defendants. *
H_O_W EL_L_L_._W A_T_K INS_I_I_R_EALTY CORP *
JERE DUKES
PETITION TO ESTABLISH TITLE AGAINST ALL THE WORLD
1.
Plaintiff resides at 2_5 B_e_a_s_l_e_y_Roa(dor other appropriate fact pattern for subject property). The
Superior Court of B_
R_O_O_K_S County has in rem jurisdiction over this matter pursuant to
O.C.G.A. -3-61. Further,
Brooks
venue is proper in County since it is the county in which the
property at issue is situated. O.C.G.A. 23-3-62(a).
2.
The land to which Plaintiff seeks to establish clear title is commonly known as
_2_5_,_B_e_asl_e_y_R
_,d.County, Georgia, according to the present system of numbering houses in
_ _
Brooks_ _ _ County, Georgia, and is more particularly described as: (legal description
here), a true and correct copy of which is attached hereto as Exhibit A.
3.
For Example: This certain deed is in accordance with the records of the County Tax
Assessor. The past records of the Tax Assessor state that the property is approximately acres.
This acreage would include both the property having the house known as the lot in the back of
the house known as Lot , Block on the original survey. While there is no direct
conveyance among the heirs and successors in interest of decedent, the actions of the family in
transferring the property indicate that this parcel was to be considered as a part of the original
parcel. This is evidenced by the conveyance dated , in Deed Book , Page ,
County records, which Petitioner believes was intended to convey all property then
owned so that no property would remain in her estate upon her death. That this was
her intention is further evidenced by the fact that no heirs sought to be appointed executor under
the joint Will that had previously been probated in solemn form.
6.
7.
Furthermore, prior landowners have been maintaining the property, including, but not
limited to general upkeep and payment of property taxes based on the lot size of .6 acres,
which includes both lots on a public, continuous, exclusive, uninterrupted and peaceable basis
for at least twenty years. O.C.G.A. 44-5-161 and 163. If adverse possession is held for 20
years, a title by prescription arises. O.C.G.A. 44-5-160. It appears from the lay of the land and
from the actions of prior owners that the lot has been continuously used and maintained as their
own and to the exclusion of all others. See Hughes v. Heard, 215 Ga. 156, 109 S.E. 2d 510
(1959). No adjoining landowners have attempted to use any the property for at least 20 years.
8.
Petitioner has completed various steps to insure title to the property including an
Affidavit of Descent and Possession describing the intention of decedents. Additionally, an
attempt was made to have all potential successors in interest sign a quitclaim deed for the lot.
9.
10.
Attached hereto as Exhibit E is an abstractive title of the land that is the subject of this
proceeding.
11.
Attached hereto as Exhibit C is a list of all possible adverse claimants of whom Plaintiff
has actual or constructive notice.
12.
Attached hereto as Exhibit F is a copy of the plat of survey of the parcel of land that is
the subject of this proceeding.
13.
a. That the Court assume in rem jurisdiction against all the world to establish
Plaintiffs title to the land pursuant to O.C.G.A. 23-3-61;
b. That the Court appoint and refer this matter to a Special Master pursuant to
O.C.G.A. 23-3-63;
c. That process issue directed to all persons who are entitled to notice and to all the
persons whom this action may concern, including service perfected by publication, if necessary,
pursuant to O.C.G.A. 23-3-66(b);
f. That the Court issue a decree to be recorded in the Office of the Clerk of Superior
Court establishing Plaintiffs title in the property against all the world and that all clouds to
Plaintiffs title to the property be removed; and
g. That Plaintiffs have such other and further relief as may be equitable and just
under the facts set out herein.
By:
Notary Public
(Notarial Seal)
*
,
*
Plaintiff,
* CIVIL ACTION FILE
v.
*
ALL PERSONS KNOWN OR UNKNOWN
* NO.
WHO CLAIM OR MIGHT CLAIM
ADVERSELY TO PLAINTIFFS TITLE TO *
REAL PROPERTY KNOWN AS
, *
COUNTY
GEORGIA, *
Defendants. *
Notice is hereby given pursuant to O.C.G.A. 44-14-610 that the above-styled action
was filed on , 20 , at oclock .m. in the Office of the Clerk of Superior
Court of County, Georgia.
Relief is sought against the property described in Exhibit A attached hereto and
incorporated herein.
The relief sought against said property is the granting of a quiet title to
This day of , 20 _.
BY:
State Bar No.
Attorney for Plaintiff
*
R_I_C_HA_R_D J_E_RR_Y M
, cLEOD
*
Plaintiff,
* CIVIL ACTION FILE
v.
*
ALL PERSONS KNOWN OR UNKNOWN
WHO CLAIM OR MIGHT CLAIM * NO.
ADVERSELY TO PLAINTIFFS TITLE TO
*
REAL PROPERTY KNOWN AS
_G_R_O_OV_E_R_V_IL_L_E M_E_T_H_O_D
_,IST CHURCH c/o Richard Je*rry McLeod
______
B RO O K S COUNTY
GEORGIA, *
Defendants. *
H_O
_W E_L_L_W A_T_K_IN_S *
JERE DUKES
BECKY ROTHROCK,,
ORDER APPOINTING SPECIAL MASTER
Individually and in
Her Official Capacity of
BrooksTChe above Petition having been read and considered, it is hereby ordered that
, who is authorized to practice law in the State of Georgia and who is a
resident of the Circuit is hereby appointed Special Master in this case as
provided by O.C.G.A. 23-3-61, et. seq.
It is further ordered that the Special Master is authorized and directed to proceed with the
duties in this case, all in accordance with O.C.G.A. 23-3-61, et. seq.
Honorable
Judge, Superior Court
County, Georgia
Prepared by:
Chapter 5 of the Georgia Code provides that public, continuous, uninterrupted and peaceable
possession, accompanied by a claim of right, results in full and complete title vested in the
adverse possessor. To establish title by adverse possession, the claimant would be required to
obtain an order by a court of competent jurisdiction declaring the client the legal titleholder in a
suit to quiet title. The adverse possessor must demonstrate, by preponderance of the evidence,
each of the elements of adverse possession. However, when a client has some property
ownership rights in common with others, whether through devise or intestate succession, the
client will be barred from establishing adverse possession by section 44-6-123 of the Georgia
Code. This section expressly provides that [t]here may be no adverse possession against a
cotenant until the adverse possessor effects an actual ouster, retains exclusive possession after
demand, or gives his cotenant express notice of adverse possession. Additionally, title to real
property cannot be gained by the mere abandonment by a previous owner or cotenant. The
attorney should review the elements of adverse possession, ouster and abandonment to determine
if the circumstances of clients case warrant further action under these theories.
In Georgia, adverse possession is governed by Title 44, Chapter 5 of the Georgia Code,
as interpreted by case law. Various sections interact to create the adverse possession landscape,
the most pivotal being 44-5-161, 44-5-163, and 44-5-164. Georgia courts generally require
that the adverse possessor prove that the possession was:
(b) Public;
(e) Peaceful.1
Claim of ownership can be established when the possessor acts contrary to the rights of
the true owner (in many of the applicable cases, the true owner would be a relative of the
possessor), such as an erection of and subsequent occupancy of buildings1 2 Note that payment of
taxes is but one factor to be considered along with other evidence and receives no elevated
1
Smith v. Board of Educ., 168 Ga. 755 (1929).
2
Shiels v Roberts, 64 Ga. 370 (1879).
1.3 Public
The possessor must act in a sufficiently public way toward the property to warn any
reasonably diligent owner that someone else is in possession of the property. Acts of possession
may be evidenced by enclosure, cultivation, or any use and occupation of the lands, which are of
such an open, public and notorious character, as would be calculated to attract the attention of the
true owner exercising ordinary vigilance. 4 Actual notice to the true owner of adverse nature of
possession is required only when the possession began as permissive.5 Payment of taxes is
evidence of notoriety of possession.6
Continuous does not mean constant. Behavior that is appropriate for an average owner of
property is generally sufficient. Courts interpreting this element do not require absolute
mathematical continuity, but rather undertake an analysis of the substance of possession.7 Unlike
many other jurisdictions, a mere entry by the true owner does not necessarily break continuity.8
If the true owner or a third person dispossesses the adverse possessor, the clock is reset and will
start running in favor of the former adverse possessor only if and when he recovers possession.
Acts of owners that fall short of interruption, however, such as requests of the possessor to leave
or the filing of a complaint without follow up, do not reset the adverse possessors clock.
Possession must continue for a period of 20 years;9 unless the claimant can produce written
evidence of title, then the time period is reduced to 7 years.10 Also, note that a claimant in
possession of only a portion of the property described in the purported instrument giving rise to
color of title will have grounds to claim the entirety of property so described.
1.5 Exclusivity
The claimant must demonstrate that he or she is exercising dominion as a sole owner, to
the exclusion of, and in opposition to, the claims of all others. Generally, a person who does not
attempt to exclude others is generally not regarded as a possessor of property; however, in
Georgia there is one caveat to consider. Joint adverse possession may be found where a joint
claim is made as against the rest of the world.11 On the other hand, however, where two or more
persons without color of title are in joint possession make claims to the same property, neither
will be found to have the exclusive possession necessary to establish prescriptive title through
adverse possession.12
3
Culbreath v. Patton, 73 Ga. App. 667 (1946).
4
Pridgen v. Coffee County Bd. Of Educ., 218 Ga. 326 (1962).
5
Proctor v. Heirs of Susie Jernigan, 273 Ga. 29 (2000)
6
Georgia Power Co. v. Irvin, 267 Ga. 760 (1997).
7
Walker v. Steffes, 139 Ga. 520 (1913)
8
Rutherford v. Hobbs, 63 Ga. 243 (1879)
9
GA. CODE ANN. 44-5-163
10
GA. CODE ANN. 44-5-164
11
Carter v. Beckton, 250 Ga. 617 (1983).
12
Id.
Little authority exists regarding this requirement. Scholars opine that the terms
uninterrupted and peaceable should be read together, meaning that the possession should not
be broken by an ouster and/ or undisturbed by successful litigation.13
(a) Tacking. Georgia law allows tacking of one adverse possession to another to reach the
statutory period as long as there is privity of a contract, privity of estate or privity of blood
relation between the successive possessors. Privity exists when the possession of the second is in
some way derived from or explained by that of the first and may be established by conveyance,
agreement, heirship or devise, which in fact transfers possession. Note that the prior possession
must not have been derived by fraud, even if the claimant is innocent.14
(b) Future Interests / Life Estates. Where a future interest exists, no adverse possession
commences against the future interest holder until the interest of the future interest holder
becomes possessory,15 unless the remaindermans right to possession is accelerated by waste.16
Similarly, an adverse possessor of a life estate may acquire title only to the life estate as against
the holder of the life estate interest.
(c) Color of title. Color of title is found where a claimant relies on a document which
purports to convey title but fails to do so; common examples are defective deed and deeds made
by persons who never owned the property, such as a deed made by a husband conveying the
wifes property.17 Note that devise of real property in a will,18 a letter containing a gift of land,19
and instruments dividing land20 have been held to be color of title; however a mortgage is not
found to be color of title in Georgia since, even if valid, it would not pass title to the property. 21.
An adverse possessor who possesses under color of title where the instrument is either recorded
or its content made known to the true owner achieves an advantaged position, and may acquire
title not only to the real property actually possessed, but also all of the lands described in the
instrument.22 For example, if the possessor were able to demonstrate that the elements of adverse
possession are met with regard to the house and barn, but not the fields (i.e., for failure to
cultivate), if these fields were described in the instrument then the adverse possessors claim
would also extend to the fields.
(d) Disability. In Georgia, like most jurisdictions, the prescriptive period will not run while
the true owner is the subject of some disability, such as minors, incarcerated persons, the
insane or where the owner is vested with title that does not give him the right to immediate
13
DANIEL F. HINKEL, PINDARS GEORGIA REAL ESTATE LAW AND PROCEDURE 12-24, 823 (6th ed. 2004)
14
GA. CODE ANN. 44-5-172; Farrow v. Bullock, 63 Ga. 360 (1860).
15
Verdery v. Savannah, Fla. & W. Ry. CO., 82 Ga. 675 (1889).
16
GA. CODE ANN. 44-6-83.
17
Carpenter v. Booker, 131 Ga. 546 (1908).
18
Harriss v. Howard, 126 Ga. 325 (1906).
19
Wooding v. Blanton, 112 Ga. 509 (1900).
20
Shiels v. Lamar, 58 Ga. 590 (1877).
21
Phillips v. Bond, 132 Ga. 413 (1909).
22
GA. CODE ANN. 44-5-167.
Section 3 Abandonment
Once an adverse claimants interest has met the statutory requirements, including the
period of prescription, title ceases to be dependent upon continuous maintenance of possession .26
Title to real property, distinguished from interests such as easements, cannot pass by mere
abandonment.27 Thus, a client who occupies land that was abandoned by a previous owner will
be required to gain title by some other method, such as adverse possession in conjunction with
ouster.
23
GA. CODE ANN. 44-5-171.
24
Supra, note 1.
25
Andrews v. Walden, 208 Ga. 340 (1951).
26
Note, however, that abandonment by an adverse possessor may constitute evidence of recognition by the adverse
claimant of a superior title. Tarver v. Depper, 132 Ga. 798 (1909).
27
Id.
Partition may be a useful remedy if the co-owners of a parcel cannot agree on the use and
possession of the property, or if the number of co-owners complicates the management of the
property (as is often the case with heirs property). These situations often arise between the family
members who receive undivided fractional interests in property from deceased relations via
intestate succession.
On April 16, 2012, the Georgia General Assembly enacted the Uniform Partition of Heirs
Property Act (the Act)1 which was signed into law by Governor Nathan Deal. The Act became
effective on January 1, 2013 and applies to partition actions filed on or after January 1, 2013. As
a result of the Acts passage, for the first time in Georgias history, the Georgia Code defines the
term heirs property. In any action for partition (whether statutory or equitable), a court must
first determine if the property in question qualifies as heirs property. If the court determines the
definition of heirs property applies, the court will proceed to adjudicate the partition action under
the Act, unless the parties agree otherwise. The Act provides owners of heirs property certain
beneficial statutory rights in partition proceedings that are not otherwise given to owners who
hold land as tenants in common. In traditional partition actions not involving heirs property, the
parties use of the property may be subject to greater risk if any of the co-owners sell their
respective interest in the property to unrelated third parties. An unrelated third party who
acquires those interests may seek to have the property partitioned. In some cases, this may lead
to one or more co-owners losing their home place on the property and/or losing the property that
has been in their families for generations, with co-owners receiving a fraction of the value that
the parties or the market would ascribe to the property. By taking the initiative to have their
property partitioned, parties can gain control over the division of their property, and over
choosing their neighbors.
This chapter is intended to be a step-by-step guide through the most common issues
facing the attorney representing the client with respect to partition. It is a summary for the
benefit of attorneys who may have a general knowledge of Georgia real property law, but who
do not practice in those areas on a regular basis. This chapter addresses the basics of the Act as
applied to statutory partition actions, as well as when an equitable partition is appropriate.
Sample pleadings are included as exhibits at the end of the chapter. For a more detailed review of
partition proceedings, the volunteer attorney should consult the Georgia Code.
1
H.B. 744, Uniform Partition of Heirs Property Act (2011-2012); O.C.G.A. 44-6-180 (2015).
The client may apply for partition if the client has at least common interest in the
property through purchase, as a beneficiary to intestate succession, upon the reversion of a life
estate to the original grantors estate, or otherwise. However, to the extent the clients interest in
the property was conveyed to the client by a document (such as a deed or a will), that document
must fail to state how such property will be divided among the common owners.2
If the client is a life tenant with respect to certain real property, he or she may apply for
partition, although the real property in question may only be partitioned in kind and not by sale.
As with any partition in kind, the court must determine that the property is capable of a fair and
equitable partition.3 Generally, a partition by a life tenant will only be effective during the life of
the life tenant.4
A client may apply for partition when the client is a co-owner of the property with at
least one other individual, and no separate agreement exists which prescribes another method by
which to subdivide the property.7 However, in some cases an equitable interest in the property
will be sufficient to apply for partition, if the court finds that such interest is the legal equivalent
of title.8 For example, if another co-owner unlawfully ousted the client from possessing its
property, the client would have an equitable cause of action for partition.9
a. Notice: Should the client decide to apply for a statutory partition, he or she
must first give the other concerned parties at least twenty (20) days notice of his or her intention
to make the application.10 If any of the other parties are a minor, a person with a mental or
cognitive disability, or a beneficiary of a trust, such notice must be served on such partys
guardian or trustee, as the case may be. If any of the parties reside outside of Georgia, the court
may order a service by publication, as it deems appropriate.9 Caution: if a Georgia resident is
temporarily absent from the State and is not present for the partition proceedings, he or she may
move to set aside a partition judgment even if the resident was served with notice.10 A sample
notice of application is included as Exhibit 1.
2
O.C.G.A. 44-6-160 (2015).
3
O.C.G.A. 44-6-172 (2015).
4
Teasley v. Hulme, 150 Ga. 495, 104 S.E. 150, 153 (Ga. 1920).
5
See City of Warm Springs v. Bulloch, 213 Ga. 164, 97 S.E. 2d 582, 583 (Ga. 1957).
6
Leggitt v. Allen, 85 Ga. App. 280, 69 S.E. 2d 106, 108 (Ga. App. 1952).
7
O.C.G.A. 44-6-160 (2015).
8
Adams v. Butler, 135 Ga. 405. 69 S.E. 559, 560 (Ga. 1910).
9
See Mills v. Williams, 208 Ga. 425, 67 S.E. 2d 212, 217 (Ga. 1951).
10
O.C.G.A. 44-6-162 (2015).
d. How to Apply: If the client is an adult and free from disability, he or she
may apply either in person or by his or her agent or attorney-in-fact or at law. If the client is a
minor, a person with a mental or cognitive disability, or the beneficiary of a trust, the clients
guardian or trustee (as the case may be) may make a partition application for the benefit of the
client.14
Equity has jurisdiction only when the statutory remedy is insufficient, or particular
circumstances render an equity proceeding more suitable or just.15 Equitable partition will be
denied where statutory partition is available, and the burden is on the party seeking partition to
prove the need for an equitable partition.16 The following are examples of where equitable
partition is appropriate:
1. Where the co-owners interest in the land was conveyed or is governed by unwritten
agreements, or by written agreements of questionable validity.17
2. Where the partition action involves equitable claims, such as a claim for an
accounting or an assertion of estoppel.18
3. Where the partition action is part of a group of other disputes.19
4. Where the rights of a party to the dispute are based on prescription.20
5. Where zoning requirements make a statutory partition in kind impracticable.21
11
O.C.G.A. 44-6-160 (2015).
12
Id.
13
See Wright v. Hill, 140 Ga. 554 (1913); Dollar v. Dollar, 214 Ga. 499 (1958).
14
O.C.G.A. 44-6-161 (2015).
15
O.C.G.A. 44-6-140 (2015).
16
See Burnham v. Lynn, 235 Ga. 207, 219 S.E. 2d 111, 112 (Ga. 1975).
17
See Coker Properties, L.P. v. Brooks, 278 Ga. 638, 604 S.E. 2d 766 (Ga. 2004).
18
Id.
19
Gorman v. Gorman, 239 Ga. 312, 236 S.E. 2d 652, 653 (Ga. 1977).
20
Bailey v. Johnson, 247 Ga. 657, 278 S.E. 2d 384, 385-6 (Ga. 1981).
21
See Chaney v. Upchurch, 278 Ga. 515, 603 S.E. 2d 255, 256 (Ga. 2004).
The Georgia Superior Courts have jurisdiction over equitable partition proceedings.25
The client should apply for partition in the county in which the defendants reside.26 The notice to
parties required for statutory partition proceedings is insufficient for equitable proceedings.
Instead, the general requirements for actions regarding process and service apply.27
a. Overview: Upon the receipt of an application to partition real property, the court
will first determine whether the property meets the definition of heirs property. If the court
determines the definition of heirs property applies, the court will proceed to adjudicate the
partition action under the Act, unless the parties agree otherwise on record. The Act defines heirs
property as land that is held in tenancy in common and that satisfies all three of the following
requirements as of the date the partition action is filed:
1. There is no agreement in a record binding all the co-owners, which governs the
partition of the property;
2. One or more of the co-owners acquired title from a relative, whether living or
deceased; and
3. Any of the following applies:
a. Twenty percent (20%) or more of the interests are held by co-owners who are
relatives;
b. Twenty percent (20%) or more of the interests are held by an individual who
acquired title from a relative, whether living or deceased; or
c. Twenty percent (20%) or more of the co-owners are relatives.28
d. The 20% Rule:The third requirement is known as the 20% Rule. Three options
exist that will allow a property to satisfy the 20% rule. The first option requires that at least 20%
of the interests in the property be held by relatives. The second option requires that at least 20%
of the interests are held by an individual that acquired the interest from a relative, whether living
or deceased. The final option requires that at least 20% of co-owners be relatives.31 The final
option differs from the first option as the final option relates to the total number of tenants, rather
than percentage interests in the property.
If the property meets all three requirements of subsections 2.1(ii)-(iv), the property is
defined as heirs property and the court will continue the partition action under the Act. By
proceeding under the Act, heirs property owners are provided significant protections that were
not realized prior to the passage of the Act.
Within ten (10) days of the determination that the property qualifies as heirs property and
an order for service by publication is granted, the plaintiff must post a conspicuous sign in the
right of way adjacent to the property that provides notice of the partition action. This posted sign
must state the following: notice of the partition action, name and address of the court presiding
over the action, the common designation by which the property is known. In addition, the court
may require the plaintiff to publish the name of the plaintiff and the names of the known
defendants on the posted sign.32
The requirements of notice provided by the Act provide significant protections for many
heirs property owners. Traditional notification methods under the existing statutory and equitable
partition statutes do not provide as strong a protection as the signage requirement provides. The
requirement of a posted sign set forth by the Act benefits those landowners, that are not known to
petitioner, and that do not live on the property, but return to the property regularly, by providing
notice on the property itself.
29
O.C.G.A. 44-6-180(5)(A) (2015).
30
O.C.G.A. 44-6-180(5)(B) (2015).
31
O.C.G.A. 44-6-180(5)(C) (2015).
32
O.C.G.A. 44-6-182 (2015).
Once determined the property is heirs property, the court must assign a fair market value
to the property. Unless all co-owners agree otherwise, the Act requires the court to conduct an
appraisal of the fee simple estate of the property as if it were solely owned, to determine the fair
market value of the property. Valuation of the full fee simple ownership of the property, as
opposed to valuing each fractional interest, ensures a fair valuation of the land. The appraisal
must be completed by an independent appraiser which will file an appraisal report with the court
upon completion of the appraisal. Once the appraisal report is filed with the court, the court will
notify each known party (i) of the appraised fair market value of the property, (ii) that the report
is available at the clerks office, and (iii) that each party has the right to file an objection to the
appraisal not later than thirty (30) days after the notice is sent. Not less than thirty (30) days after
notice is sent to the parties, whether or not any party objects the appraisal report, the court will
hold a hearing to determine the fair market value of the property. In making its determination of
fair market value, the court will consider the court ordered appraisal and any other relevant
evidence offered by a party.33 After the hearing on the fair market value, but before considering
the merits of the partition action, the court shall make a final determination of the fair market
value of the property and send notice to the parties of the value.
However, where the court determines that the evidentiary value of an appraisal is
outweighed by the cost of the appraisal, the court will bypass the appraisal process and determine
the fair market value of the property after a hearing on the same.
The process of appraisal under the Act provides significant protection to heirs property
owners. In a traditional partition action involving non-heirs property, the court will appoint three
qualified persons to make appraisals of the property. The average of the three appraisals will
constitute the appraised price of the property for purposes of a private sale among the co-owners.
Notice of the amount of the appraised price is then served to all parties in interest within five (5)
days after the appraised value is established.34 The Act provides a more even approach by
appointing an independent appraiser and holding a hearing to determine the final valuation.
In summary, the Act requires that the court determine the value of the property. The Act
creates a preference for valuation of the property according to the following methods: (i) private
agreement among the co-owners on how the method of valuation; (ii) if the court determines the
cost of the appraisal is prohibitive, the court will determine the fair market value after an
evidentiary hearing on the matter; and (iii) a court ordered appraisal conducted by an
independent appraiser.
a. Buyout Rights:
If any co-owner(s) requests a partition by sale, following the determination of the fair
market value of the heirs property, the court is required to send notice to all known parties of the
33
O.C.G.A. 44-6-184 (2015).
34
O.C.G.A. 44-6-166.1 (2015).
If only one co-owner exercises the option to buy all the interests of the Requesting Co-
Owners, the court will notify all parties of that fact. The electing co-owner will pay the purchase
price as described above.35
Example: Client has a 20% undivided interest in Blackacre, X has a 30% undivided
interest, Y has a 20% undivided interest, and Z has a 30% undivided interest. After an appraisal
is performed by an independent appraiser, the court determines that the Blackacre has a fair
market value of $120,000.00. X and Y request a partition by sale.
If client elects to exercise the option to buy the interests of X and Y (the Requesting Co-
Owners), and client is the only co-owner to make such election, client must pay $60,000.00 for
the interests of X and Y (50% of the fair market value). X receives $36,000.00 (30% of the fair
market value) and Y receives $24,000.00 (20% of the fair market value).
Client now holds a 70% interest in Blackacre (20% originally held plus 50% for the
acquired interests of X and Y). Z maintains its 30% interest in Blackacre.
If multiple co-owners elect to buyout the interests of the Requesting Co-Owners, the
court allocates the right to buy the interests among the electing co-owners based on each electing
co-owners existing fractional ownership of the entire parcel, divided by the total existing
fractional ownership of all co-owners electing to purchase. The court will then send notice to all
parties of the fact and the purchase price to be paid by each electing co-owner.36
Example: Client has a 20% undivided interest in Blackacre, X has a 30% undivided
interest, Y has a 20% undivided interest, and Z has a 30% undivided interest. After an appraisal
is performed by an independent appraiser, the court determines that the Blackacre has a fair
market value of $120,000.00. X and Y request a partition by sale.
If client and Z elect to exercise the option to buy the interests of X and Y (the Requesting
Co-Owners) client and Z must pay a total of $60,000.00 for the interests of X and Y (50% of the
fair market value). X receives $36,000.00 (30% of the fair market value) and Y receives
35
O.C.G.A. 44-6-185(d)(1) (2015).
36
O.C.G.A. 44-6-185(d)(2) (2015).
Client now holds a 40% interest in Blackacre (20% originally held plus 40% of the
acquired interests of X and Y). Z now holds a 60% interest in Blackacre (20% originally held
plus 60% of the acquired interests of X and Y).
However, if no co-owner elects to buy all the interests of the Requesting Co-Owners, the
court will send notice to the parties of the fact and the resolve the action as a partition in kind or
through a public sale, as described below.37
If one or more co-owners elect to purchase all the interests of the Requesting Co-Owners,
and the court sends notice to all parties notifying the parties of the election, the court will set a
date, not sooner than sixty (60) days after the date the notice was sent, by which the electing co-
owners must tender the apportioned price.38 Beginning with the forty-five (45) day Option
Period, and through the minimum sixty (60) day period to tender the purchase price, electing co-
owners have a minimum of 105 days to gather funds in an effort to buyout the Requesting Co-
Owners interest. Though gathering the requisite funds is still a challenge to many heirs property
owners, the Act provides electing co-owners, at a minimum, fifteen (15) additional days over
traditional partition procedure to gather funds to purchase the Requesting Co-Owners interests.
Under the Georgia Code, traditional partitions by sale not involving heirs property allow electing
co-owners ninety (90) days after the courts determination of fair market value to tender purchase
money to buyout plaintiff.39
The Act contains a very complex and detailed procedure for how the buyout procedure is
conducted. This includes procedures in specific scenarios. Any attorney representing a client in
a partition proceeding should conduct a careful review of the Georgia Code.
If all interests of the Requesting Co-Owners are not purchased through the buyout option,
or if a co-owner that remains requests a partition in kind, the Act provides for a statutory
preference for resolving the action through a partition in kind. The court will order the partition
in kind unless the court finds that a partition in kind creates material prejudice to the co-owners
as a whole. The court has a variety of factors to consider in determining whether partition in kind
results in prejudice to the co-owners. In considering the factors, the court does not weigh
individual factors against one another, but instead weighs the totality of the factors. The factors
the court considers are:
37
O.C.G.A. 44-6-185(d)(3) (2015).
38
O.C.G.A. 44-6-185(e) (2015).
39
O.C.G.A. 44-6-166.1(e)(1) (2015).
If, after weighing the above listed factors the court finds that partition in kind would result in
material prejudice to the co-owners, the court will order a partition by sale through the open
market (if this is the case, please proceed to Section 3.4(c)). However, if no co-owner has
requested partition by sale, the court will dismiss the partition action.40
If the court proceeds with the partition in kind, the court will first examine petitioners
title and share of the premises to be partitioned.41 Thereafter, the court will issue an order
directing the clerk of the superior court to issue a writ of partition directed to five freeholders of
the county of the county in which the lands are located who shall serve as partitioners. Under the
Act, each partitioner must be a discreet person, impartial and not a party to or a participant in the
writ of partition.42
The partitioners should give all parties at least eight days prior notice of the time of
executing the writ.43 A sample notice of writ (Exhibit 4) is attached to this chapter. After the
notice of writ, the court will swear the partitioners to execute the writ, and issue the writ to the
partitioners. Once the writ is issued, the partitioners will have three (3) months to determine a
just and equal partition of the premises and related tenements, all in proportion to the shares
claimed and in a manner deemed most beneficial to the common owners. The partitioners may
engage a surveyor to assist them in this process. Once the partition is determined, the partitioners
will attach their conclusions to the writ and return the writ to the court.
Once the writ has been returned, any party to the proceedings will have an opportunity to
file objections to the rights of the client, the writ itself, or the return of the partitioners. Should
the court determine that a basis exists for such objections, a jury in the superior court will try the
issues in question.44
40
O.C.G.A. 44-6-186 (2015).
41
O.C.G.A. 44-6-163 (2015).
42
O.C.G.A. 44-6-183 (2015).
43
O.C.G.A. 44-6-164 (2015).
44
O.C.G.A. 44-6-165 (2015).
An open-market sale is the last resort in a partition action under the Act. If the court
orders an open market sale, the court will appoint a disinterested broker to offer the property for
sale, unless the parties, not later than ten (10) days after the order of the sale, agree on a broker.
The broker is to offer the property for sale at a price no lower than the fair market value as
determined by the court.
The court, in its discretion, has the ability to order a sale by sealed bids or a public sale if
the court finds such methods would be more economically advantageous to the co-owners as a
whole.47
b. Initial Objections: During the term of the court when the application is made, any
party named in the application may file objections to the right of the client to seek partition or to
the manner of partition sought by the client. If the objecting party provides sufficient evidence to
45
O.C.G.A. 44-6-166 (2015).
46
Id.
47
O.C.G.A. 44-6-187 (2015).
48
O.C.G.A 44-6-163 (2015).
c. Order to Issue Writ: Once the application has been made, and the court has
received due proof that proper notice has been given the court will examine the clients title and
share of the premises to be partitioned. If the court is able to confirm the clients title and share,
the court will pass an order directing the clerk of the court to issue a writ of partition.50 However,
if the client or any other party in interest convinces the court that a partition in kind would not be
fair and equitable, the court will proceed with a partition by sale.51 If this is the case, please refer
to Section 4.2, below. Otherwise, the court will then direct the writ to five freeholders of the
county to act as partitioners.52 Unlike under the Act, there is no requirement that the partitioners
be a discreet person, disinterested, impartial and not a party to or a participant in the writ of
partition. This provides less protection to the owners of the property than would be enjoyed
under the Act.
d. Notice of Writ: The partitioners should give all parties at least eight days prior
notice of the time of executing the writ.53
e. Issuance and Return of Writ: After the notice of writ, the court will swear the
partitioners to execute the writ, and issue the writ to the partitioners. Once the writ is issued, the
partitioners will have three (3) months to determine a just and equal partition of the premises and
related tenements, all in proportion to the shares claimed and in a manner deemed most
beneficial to the common owners. The partitioners may engage a surveyor to assist them in this
process. Once the partition is determined, the partitioners will attach their conclusions to the writ
and return the writ to the court.54
f. Second Objection Period: Once the writ has been returned, any party to the
proceedings will have a second opportunity to file objections to the rights of the client, the writ
itself, or the return of the partitioners. Should the court determine that a basis exists for such
objections, a jury in the superior court will try the issues in question.55
49
O.C.G.A. 44-6-165 (2015).
50
O.C.G.A. 44-6-163 (2015).
51
Partition in kind may be considered inequitable if division of the property cannot be made by means of metes and
bounds because of improvements made, because the property is valuable for mining purposes, the property is
valuable for the purpose of the erection of mills or other machinery, or because the value of the property will be
depreciated if subdivided. O.C.G.A. 44.-6-166.1(b).
52
Id.
53
O.C.G.A. 44-6-164 (2015).
54
Id.
55
O.C.G.A. 44-6-165 (2015).
56
O.C.G.A. 44-6-166 (2015).
b. Partitions by Sale - The Process: Once the court has determined that a partition
by sale is appropriate, the court will appoint three (3) qualified persons to make appraisals of the
property. The average of the three appraisals shall constitute the appraised price of the property.
Notice of the amount of the appraised price is then served to all parties in interest within five (5)
days after the appraised price is established.59
Within fifteen (15) days after the appraised price is established: (A) the client, or any
other person petitioning for partition of the property, may, upon request to the court, withdraw as
a petitioner but remain a party with interest in the property; and (B) any party with an interest in
the property may become a petitioner in the partition action. If, after fifteen (15) days, there are
any petitioners remaining, then each petitioner will be entitled to receive its proportionate share
of the appraised price. After receiving the proportionate share, the petitioners shall then have no
further claims to or interest in the property. If, after fifteen (15) days, no petitioner remains, then
the court shall dismiss the partition proceeding, and the client and all other petitioners who have
withdrawn shall be liable for the costs of the partition action.60
If any petitioners are remaining after fifteen days, then, no sooner than sixteen days but
no later than ninety days after the appraised price is established, the other parties in interest must
remit to the court an amount sufficient to pay the petitioners their proportionate shares of the
appraised price. If the parties in interest do not remit sufficient funds to cover payment to the
petitioners, then the property shall be subject to public sale. (Note: In such event, please skip to
Section 4.2(c)).
Pursuant to the above paragraph, a party in interest may pay up to the amount
proportionate with the petitioners share of the property. In addition, a party in interest may also
pay another partys proportionate share of the remittance. In that case, the proportionate shares of
the parties in interest shall be adjusted accordingly. Stated differently, if more than one party
who had not petitioned the court for a partition by sale wishes to exercise their right to buyout
interests under this section, each of these co-owners shall be entitled to purchase a portion of the
interest that is available to be bought out at a level that is equal to the co-owners existing
percentage ownership divided by the total percentage ownership of all co-owners participating in
the buyout.
Within ninety-five (95) days after the appraised price is established, the client and other
57
Id.
58
O.C.G.A. 44-6-166.1 (2015).
59
Id.
60
This differs from the Act in that in a statutory partition action, even the party requesting the partition by sale can
purchase the interests of the other co-owners. This leaves many owners at risk, as a hostile co-owner may sell their
share to a third-party, who in turn may apply for a partition by sale.
c. Public Sales: If a court decides that a partition by sale is appropriate, but the
parties in interest fail to provide sufficient funds to cover payment to the petitioners for their
interest in the land, the court will order a public sale of the land. When this occurs, the court will
appoint three individuals to conduct the sale in accordance with such terms as the court may
prescribe. The sale process is as follows: (i) the sale will occur the first Tuesday of the month;
(ii) the sale will take place in the location where public sales take place for the county in which
the land is located; (iii) notice will be provided by advertisement in a public newspaper once a
week for four weeks. At the completion of the sale, the proceeds will be divided amongst all co-
owners in proportion to their respective interests after deducting the expenses of the proceedings.
Additionally, all co-owners will execute the necessary conveyance documents to the purchaser.
If a co-owner fails to do so, two or three of the commissioners may execute a deed of
conveyance to the purchaser on that co-owners behalf.
For a partition in kind, the court may require that an improved portion of the land may be
included in the allotment of the co-owner who improved it.62Additionally, if the court determines
that an equal or proportionate partition cannot be made or made advantageously, then the court
may require a co-owner(s) to pay the other co-owner(s) an amount that the court believes would
compensate the other co-owner(s) for the discrepancy between a fair partition and the actual
partition. This practice is known as owelty.63
Alternatively, in a partition by sale, the court may award to the purchaser a part
previously sold ultra vires by a co-owner.64 Moreover, the court may consider whether any
parties to a partition incurred expenses in maintaining the partitioned property, so that the
property may be divided accordingly.65
Overall, the court may also deny a partition altogether if the court determines that the
interest of each party to the proceeding will not be protected fully.66 For example, the court may
61
See Nixon v. Nixon, 197 Ga. 426, 29 S.E. 2d 613 (Ga. 1944).
62
Walton v. Ward, 142 Ga. 385, 82 S.E. 1027 (Ga. 1914).
63
See Collier v. Bank of Tupelo, 190 Ga. 598, 10 S.E. 2d 61 (Ga. 1940).
64
Lane v. Malcolm, 141 Ga. 424, 81 S.E. 125 (Ga. 1914).
65
Baker v. Baker, 245 Ga. 525, 250 S.E. 2d 436 (Ga. 1998).
66
O.C.G.A 44-6-170 (2015).
The superior courts judgment in a partition proceeding is deemed final as to all notified
parties. However, any party that is not notified of the proceedings, or is out of the state during
the proceedings, may move the court to set aside the judgment for up to twelve (12) months after
rendition of the judgment. Also, any party who is a minor or a person with a mental or cognitive
disability, and has no legal guardian may move to set aside judgment for up to twelve months
after coming of age, gaining or regaining mental competency, or having a guardian appointed.68
67
See McClain v. McClain, 241 Ga. 162, 243 S.E. 2d 879, 880 (Ga. 1978).
68
O.C.G.A. 44-6-171 (2015).
69
O.C.G.A. 44-6-141 (2015).
70
Chaney v. Upchurch, 603 S.E. 2d 255, 257 (Ga. 2004).
71
O.C.G.A. 44-6-142 (2015).
Georgia, County
You are hereby notified that I will apply to the Superior Court to be held in and for said
county, on the Monday in next, for the appointment of
commissioners to divide (describe the land to be divided), in said county, in which you
and I have a common interest.
This day of , 20 .
STATE OF GEORGIA
, )
)
Plaintiff, ) CIVIL ACTION FILE NO:
)
v. )
)
, )
)
Defendant. )
)
Plaintiff files this Complaint for Statutory Partition and shows the following:
1.
The property, which is the subject matter of this action, is situated in County,
Georgia, and is more particularly described in Exhibit A attached hereto.
2.
Defendants are residents of County, Georgia, and are subject to the jurisdiction of
this Court.
3.
4.
5.
6.
Plaintiff is entitled to have his title examined and to have said land partitioned between
himself and defendants, and the following documents of title are attached hereto as
Exhibits and .
Address
Telephone Number
, )
)
Plaintiff, ) CIVIL ACTION FILE NO:
)
v. )
)
, )
)
Defendant. )
)
COMES NOW [name of party], by his/her attorney [name of attorney], and elects to buy
all the interests of cotenants in the action that requested partition by sale.
This day of , 20
Address
Telephone Number
Georgia, County
You are hereby notified that by virtue of a writ of partition issued from the Superior Court of
said county we shall proceed on the day of , 20 , to make partition of
a lot of land (describe the land) in said county,
between yourselves, as common owners, or tenants in common of said lot of land.
Partitioners
(a) Authority. The authority to levy taxes rests with the State of Georgia; the county in which
the property is located; and the municipality in which the property is located.
(b) General Purpose. Property taxes may be levied to pay for services provided by the state
and local government, to finance public improvements, and for educational purposes.
(a) Who Should File. Residents and non-residents that own real property in Georgia
(b) When to File. Between January 1 and April 1 of each year. (Note the deadline to file in
Bibb, Butts, Chatham, Clarke, DeKalb, Gwinnett, Hall and Newton counties is March 1st.)
(c) Where to File. Tax Commissioner or Tax Receiver of the county in which the property is
located.
(d) What Information is Filed. Department of Revenue Form PT-50R - property location
description; owners contact information; description of property condition and physical
improvements.
(e) Effect of Failure to File. If a return is not filed, the previous years return is applied,
describing the same property at the same value with the same exemptions. If, for example, the
owner/taxpayer acquires additional property, or improvements are made to the property, the
previous years return would no longer be valid, and a new return must be filed.1 A 10% penalty
will be assessed on property for which no return was filed, where the previous years return
would not apply.
(a) General Assessment Level. Property is assessed at 40% of its fair market value.1,2
1
O.C.G.A. 48-5-20 .
2
O.C.G.A. 48-5-7.
(iv) Rehabilitated and landmark historic properties - temporary freeze on fair market
value for assessment purposes.6
(v) Brownfield properties - temporary freeze on the fair market value for assessment
purposes.7
(a) When Lien Attaches. Taxes are charged against the property as of January 1.8
(b) Who is Liable. Property taxes are charged against the owner of the property, life tenants
and those who own and enjoy the property.9
(c) Notice of Taxes Due. Notices of taxes due and the subject propertys fair market and
assessed values are sent to taxpayers.1011
(d) Deadline for Payment of Taxes; Interest and Penalties for Late Payments. For most
counties, taxes are due on December 20 of each year; however, this deadline may be earlier for
some counties.11 After the tax payment deadline, interest is charged at the rate of 1% per month .12
Depending upon the county, a penalty of as much as 10% is imposed on unpaid taxes.13 Specific
information about the payment of taxes for a particular county, including the deadline and
whether taxes are paid in installments, may be found at the following website:
https://etax.dor.ga.gov/PTD/county/index.aspx.
Georgia law provides two procedures for the sale of property that is the subject of
3
Id. 7(b).
4
Id. 7(c)(2). see id. 7.4 for conservation use property qualifications.
5
Id. 7(c)(3); see id. 48-5-7.4 for qualifications.
6
O.C.G.A. 48-5-2(c) -(d), 7(c), 7(c)(1).
7
O.C.G.A. 48-5-2(e), 48-5-7(c)(4).
8
O.C.G.A. 48-5-9.
9
Id.
10
O.C.G.A. 48-5-7(e).
11
O.C.G.A. 48-5-24.
12
O.C.G.A. 48-2-40.
13
O.C.G.A. 48-5-24.
Until 2002, Georgia law provided a third remedy for collecting delinquent property
taxes. Instead of selling the property itself, counties could sell tax liens to private investors, who,
in turn, could seek to enforce the lien using the non-judicial tax sales procedures. Although
counties no longer sell tax liens to private parties, some transferred liens remain outstanding.
These dormant tax liens will continue to accrue interest and penalties, perhaps for years, until
such time as the lien-holder initiates non-judicial tax sale proceedings to enforce the lien.
(a) Notice of Delinquency.15 Prior to issuance of a writ of execution, the tax collector or tax
commissioner must issue written notice to the taxpayer as soon as the tax due date has passed,
notifying the taxpayer that the taxes have not been paid and that an execution will be issued.16
The writ of execution may not be issued until 30 days after this notice is provided.17
(b) Issuance of Writ of Execution. Thirty days after issuance of the notice described above,
the tax commissioner or tax collector may issue a writ of execution to the county sheriff. A writ
of execution is a formal directive ordering the sheriff to sell the property at auction.
(c) Affidavit of Illegality.18 Once the writ of execution is issued, the taxpayer may contest
whether the taxes are actually due by filing an affidavit of illegality with the county sheriff. The
affidavit is then forwarded to the local superior court for a judicial determination of whether the
tax is due. Note that a bond securing the amount that would be charged to the taxpayer in the
event of an adverse judgment must accompany the affidavit.
(d) Notice of Sale. Ten days before the sale, written notice must be sent to the defendant
under the tax execution.19 In cases of multiple owners, or where property is transferred after
January 1, the defendant under the tax execution may not necessarily be the owner of the
property. Twenty days before the sale, written notice must be sent to the property owner.20 Notice
of the sale must be published once a week for 4 weeks.21 Notice must be published in the
newspaper in which sheriffs sales are advertised in the applicable county. Qualifications for
official newspapers are set forth in Section 9-13-142 of the Georgia Code.
(e) Statute of Limitations. Executions expire 7 years from the date of issue.22 This 7-year
period may be renewed by the entry of nulla bona by the levying officer, and the recording (or
re-recording) of the tax execution. Note, however, that it is not clear that the expiration of an
execution discharges the underlying obligation to pay property taxes. Rather, the expiration of an
14
O.C.G.A. 48-4-1-7
15
O.C.G.A. 48-3-3.
16
Id. 3(c).
17
Id. 3(b).
18
O.C.G.A. 48-3-1.
19
O.C.G.A. 48-4-1.
20
O.C.G.A. 48-3-9.
21
O.C.G.A. 9-13-140-141. and O.C.G.A. 48-4-2.
22
O.C.G.A. 48-3-21.
(f) Excess Amounts. Within 30 days after the sale, written notice must be provided to
owners (and other persons with a recorded security or equity interest in the property) of any
excess funds.24 Claimants then have 5 years from the date of the tax sale to collect the excess
funds.25 After the 5-year period has elapsed, the unclaimed excess funds are paid to the
Department of Revenue, and may only be released by a court order from an interpleader action
filed by the claimant.26
In the case of a sale of property for which no return has been filed, excess taxes are paid
to the county, and must be claimed within 4 years of the date of sale.27
(g) Redemption.28
(i) Who may redeem: The owner, or any person having any right, title, interest in or
lien upon the property.29
(ii) Redemption period: Twelve months after the date of sale; after the initial 12-
month period, the property may be redeemed until the tax purchaser issues a notice of
foreclosure of the right of redemption or, if no notice is issued, until the tax deed ripens by
prescription (discussed below).30
(iii) Cost to Redeem: The total of (a) the amount paid for the property at the tax sale,
plus (b) any taxes paid after the tax sale, plus (c) any special assessments, plus (d) a premium of
20% of the redemption cost for the first year and 10% for each year thereafter, plus (e) if the cost
to redeem is not paid until 30 days after the notice of foreclosure of redemption rights is given,
the sheriffs cost in connection with serving the notice and the cost of publication of the notice, if
any.31
(iv) Effect of Redemption: Within 7 days of payment of the redemption cost, the tax
purchaser must execute a quitclaim deed to the defendant named in the tax execution, and title is
restored to the tax execution defendant, subject to all liens existing at the time of the sale.32 The
23
O.C.G.A. 48-5-28.
24
O.C.G.A. 48-4-5(a).
25
Id. 5(c).
26
Id.
27
O.C.G.A. 48-4-2.
28
O.C.G.A. 48-4-40-48
29
Id. 40.
30
Id.
31
Id. 48.
32
Id. 43-44.
(discussed below) is issued, the tax deed may ripen by prescription, thereby foreclosing the
right to redeem. If the defendant named in the execution suffered from a legal disability, the
prescriptive period begins when the disabilities are removed or abated.34
(1) Tax deeds executed on or after July 1, 1996: 4 years from the date the deed is
recorded.
(2) Tax deeds executed on or after July 1, 1989, but before July 1, 1996: 4 years from
the date the deed is executed.
(3) Tax deeds executed prior to July 1, 1989: 7 years from the date the deed is
executed.
(ii) Notice of Foreclosure of Redemption Rights: Twelve months following the date
of the tax sale, the tax purchaser may forever terminate the right to redeem the property by
providing notice in accordance with Sections 48-4-45 and 48-4-46 of the Georgia Code.
Written notice must be provided to the defendant under the execution, any occupant of
the property, all persons having any recorded right, title, interest in or lien upon the property, and
heirs of any deceased owner of the land. Notice to county residents must be made by personal
service, by depositing notice with the sheriff at least 45 days prior to the redemption deadline.
Notice to non-residents must be sent by registered or certified mail, or by statutory overnight
courier. Any person required to be notified may waive service of notice in writing. Notice must
also be published once a week for 4 consecutive weeks in the 6-month period prior to the week
of the redemption deadline in the newspaper in which the sheriffs advertisements for the county
are published.
(iii) Effect of Notice of Foreclosure on Actions to Cancel the Tax Deed: Once a
Notice of Foreclosure of Redemption Rights is issued, no action to cancel or set aside a tax deed
may be filed or maintained until the plaintiff tenders the full redemption amount, unless it
clearly appears that the underlying tax supporting the execution was not due at the time of the
sale, or service or notice were not given in accordance with Sections 48-4-40 through 48-4-48 of
the Georgia Code.35
The judicial tax sale process may be used by either the county or, with respect to
33
Id. 44.
34
Id. 48.
35
Id. 47.
36
O.C.G.A. 48-4-75-81.
The process is initiated by the filing of an in rem petition in the superior court of the
county in which the property is located.40 The petition must conform to the form set forth in
Section 48-4-78(g), and contain the substantive information set forth in Section 48-4-78(c). The
petitioner must send copies of the petition (a) by certified mail or statutory overnight courier to
all interested parties whose identities and addresses are reasonably ascertainable and (b) by
first class mail to the property address to the attention of the occupants. A copy of the petition
shall also be posted on the property.41 Within 30 days of filing the petition, notice must be
published on two separate dates in the official organ of the county in which the property is
located.42 Simultaneously with the filing of the petition, the petitioner shall also file a notice of lis
pendens.43
At least 30 days following the filing of the petition, a hearing will be held at which any
interested party shall have the right to be heard and to contest the delinquency of the taxes or the
adequacy of the proceedings.44 If the court finds in favor of the petitioner, the court will issue an
order providing that the property be sold free of all liens, claims and encumbrances, other than
(a) rights of redemption under federal law; (b) superior Georgia governmental tax liens (superior
to those of the petitioner); (c) easements and rights of way of holders who are not interested
parties; and (d) real covenants filed of record as of the date the petition is filed.45 Any interested
party may redeem the property at any time before the court-ordered sale.
Once the sale is completed, the owner (owner of record at the time the petition is filed,
together with any successors-in-interest by death) may redeem the property within 60 days
following the sale. Completion of the court-ordered sale (and, with respect to the owner,
expiration of the aforementioned 60-day period) forecloses the right to redeem the property
(except as noted in Section 48-4-79 with respect to redemption of federal liens). Upon payment
of the redemption amount, the proceedings shall be dismissed. If an interested party that is not
the owner makes a payment, then the party making such payment possesses a lien on the
property of equal priority as the delinquent taxes, which may be enforced as any lien under
existing law (e.g., by the tax execution procedures described above, but not through the judicial
tax proceedings). Following the judicial hearing and court order authorizing sale of the property,
notice of the sale shall be advertised, and the sale shall be conducted, in accordance with the
requirements for sheriffs sales.46 The sale cannot occur earlier than 45 days following issuance
37
Id. 76.
38
Id.
39
Id. 78.
40
Id.
41
Id. 78(d).
42
See id. 78(f) for the form and substance of the notice.
43
Id. 78(e).
44
Id. 79.
45
Id.
46
Id. 48-4-80; see O.C.G.A. 9-13-160 thru178 for conducting sheriffs sales; see O.C.G.A. 9-13-140
thru142 for advertising sheriffs sales.
47
Id. 80
48
O.C.G.A. 48-8-8
Generally, powers of attorney are construed strictly in accordance with the written
instrument that creates the agency and are not interpreted to increase the attorney-in-facts
powers beyond those that are set forth in the document (although the attorney-in-fact will be
permitted to take actions that are necessary and customary to accomplish the actions that are
specifically permitted).1,2
Effective as of July 1, 1995, the Georgia legislature created a financial power of attorney
that can be used to appoint an agent to handle the principals financial affairs. This can be a
broad, general power of attorney, or it may be limited by the principal, but cannot be used to
authorize the agent to make medical decisions for the principal.5 The statutory form of financial
power of attorney is attached, but is not the only way a financial power of attorney can be
created.6 If the statutory form of power of attorney is used, the statute provides that the principal
should write his or her initials at the end of each paragraph that is intended to be included.
Paragraphs that are not intended to be incorporated into the power of attorney can be crossed out
and initialed by the principal or not included in the power of attorney at all.
Two adults must witness a financial power of attorney, and at least one of the witnesses
1
Ga. Jur. 15:1.
2
Ga. Jur. 15:2.
3
O.C.G.A. 10-6-6(a) (2015).
4
Ga. Jur. 15:3.
5
O.C.G.A. 10-6-141.
6
O.C.G.A. 10-6-140.
A power of attorney may be revoked or terminated in accordance with the same rules
that apply to revocation or termination of any agency relationship under Georgia law. Therefore,
a power of attorney will terminate upon: (a) revocation at the will of the principal (except to the
extent that the power of attorney is also coupled with an interest), (b) appointment of a new
attorney-in-fact, or (c) death of the principal or the attorney-in-fact.8 Notwithstanding the
foregoing, a power of attorney may not be revoked due to the principals death if:
(3) the principal is serving as a merchant seaman outside of the United States, or
(4) the principal is serving the government of the United States in a location outside of the
United States in an activity pertaining to a war in which the United States is then engaged.
In the case of (2), (3) or (4) above, the power of attorney is not terminated if the attorney-
in-fact acts in good faith reliance on the power of attorney and does not have actual knowledge
of the principals death.9 Powers of attorney are not terminated by the incompetency of the
principal, unless the written instrument expressly provides otherwise. Instead, the power of
attorney remains in effect until a guardian or receiver is appointed for the principals benefit or
until a judicial proceeding terminates the power of attorney.10
7
141.
8
O.C.G.A. 10-6-33.
9
O.C.G.A. 10-6-35.
10
O.C.G.A. 10-6-36.
Georgia Appleseed Heirs Property in Georgia Attorney Training Manual Page 100
EXHIBIT 1: STATUTORY FORM OF FINANCIAL POWERS OF ATTORNEY11
County of
State of Georgia
(Directions: To give the Agent the powers described in paragraphs 1 through 13, place
your initials on the blank line at the end of each paragraph. If you DO NOT want to give a
power to the Agent, strike through the paragraph or a line within the paragraph and place
your initials beside the stricken paragraph or stricken line. The powers described in any
paragraph not initialed or which has been struck through will not be conveyed to the
Agent. Both the Principal and the Agent must sign their full names at the end of the last
paragraph.)
1. Bank and Credit Union Transactions: To make, receive, sign, endorse, execute,
acknowledge, deliver, and possess checks, drafts, bills of exchange, letters of credit, notes, stock
certificates, withdrawal receipts and deposit instruments relating to accounts or deposits in, or
certificates of deposit of banks, savings and loans, credit unions, or other institutions or
associations.
2. Payment Transactions: To pay all sums of money, at any time or times, that may
hereafter be owing by me upon any account, bill or exchange, check, draft, purchase, contract,
note, or trade acceptance made, executed, endorsed, accepted, and delivered by me or for me in
my name, by my Agent
3. Real Property Transactions: To lease, sell, mortgage, purchase, exchange, and acquire,
and to agree, bargain, and contract for the lease, sale, purchase, exchange, and acquisition of, and
to accept, take, receive, and possess any interest in real property whatsoever, on such terms and
conditions, and under such covenants, as my Agent shall deem proper; and to maintain, repair,
tear down, alter, rebuild, improve, manage, insure, move, rent, lease, sell, convey, subject to
liens, mortgages, and security deeds, and in any way or manner deal with all or any part of any
interest in real property whatsoever, including specifically, but without limitation, real property
lying and being situate in the State of Georgia, under such terms and conditions, and under such
covenants, as my Agent shall deem proper and may for all deferred payments accept purchase
money notes payable to me and secured by mortgages or deeds to secure debt, and may from
time to time collect and cancel any of said notes, mortgages, security interests, or deeds to secure
debt.
Georgia Appleseed Heirs Property in Georgia Attorney Training Manual Page 101
4. Personal Property Transactions: To lease, sell, mortgage, purchase, exchange, and
acquire, and to contract for the lease, sale, purchase, exchange, and acquisition of, and to accept,
take, receive, and possess any personal property whatsoever, tangible or intangible, or interest
thereto, on such terms and conditions, and under such covenants, as my Agent shall deem proper;
and to maintain, repair, improve, manage, insure, rent, lease, sell, convey, subject to liens or
mortgages, or to take any other security interests in the property which are recognized under the
Uniform Commercial Code as adopted at that time under the laws of Georgia or any applicable
state, or otherwise hypothecate, and in any way deal with all or any part of any real or personal
property whatsoever, tangible or intangible, or any interest therein, that I own at the time of
execution or may thereafter acquire, under such terms and conditions, and under such covenants,
as my Agent shall deem proper.
5. Stock and Bond Transactions: To purchase, sell, exchange, surrender, assign, redeem,
vote at any meeting, or otherwise transfer any and all shares of stock, bonds, or other securities
in any business, association, corporation, partnership, or other legal entity, whether private or
public, now or hereafter belonging to me.
6. Safe Deposits: To have access at all times to any safe deposit box or vault to which I have
access.
7. Borrowing: To borrow such sums of money as my Agent may deem proper and execute
promissory notes, security deeds or agreements, financing statements, or other security
instruments in such form as the lender may request and renew said notes and security
instruments from time to time in whole or in part.
8. Business Operating Transactions: To conduct, engage in, and otherwise transact the
affairs of any and all lawful business ventures of whatever nature or kind that I may now or
hereafter be involved in.
9. Insurance Transactions: To perform any act, power, duty, right, or obligation, in regard to
any contract of life, accident, health, disability, liability, or other type of insurance or any
combination of insurance; and to procure new or additional contracts of insurance for me and to
designate the beneficiary of same; provided, however, that my Agent cannot designate himself or
herself as beneficiary of any such insurance contracts.
10. Disputes and Proceedings: To commence, prosecute, discontinue, or defend all actions or
other legal proceedings touching my property, real or personal, or any part thereof, or touching
any matter in which I or my property, real or personal, may be in any way concerned. To defend,
settle, adjust, make allowances, compound, submit to arbitration, and compromise all accounts,
reckonings, claims, and demands whatsoever that now are, or hereafter shall be, pending
between me and any person, firm, corporation, or other legal entity, in such manner and in all
respects as my Agent shall deem proper.
Georgia Appleseed Heirs Property in Georgia Attorney Training Manual Page 102
12. Tax, Social Security, and Unemployment: To prepare, to make elections, to execute and
file all tax, social security, unemployment insurance, and informational returns required by the
laws of the United States, or of any state or subdivision, or of any foreign government; to
prepare, to execute and file all other instruments which the Agent thinks is desirable or necessary
for safeguarding of me against excess or illegal taxation or against penalties imposed for claimed
violation of any law or other governmental regulation; and to pay, to compromise, or to contest
or to apply for refunds in connection with any taxes or assessments for which I may be liable.
13. Broad Powers: Without, in any way, limiting the foregoing, generally to perform any
other act, deed, matter, or thing whatsoever, that should be done, executed, or performed,
including, but not limited to, powers conferred by Code Section 53-12-232 of the Official Code
of Georgia Annotated, or that in the opinion of my Agent, should be done, executed, or
performed, for my benefit or the benefit of my property, real or personal, and in my name of
every nature and kind whatsoever, as fully and effectually as I could do if personally present.
.
14. Effective Date: This document will become effective upon the date of the Principals
signature unless the Principal indicates that it should become effective at a later date by
completing the following, which is optional. The powers conveyed in this document shall not
become effective until the following time or upon the occurrence of the following event or
contingency: .
Note: The Principal may choose to designate one or more persons to determine conclusively
that the above-specified event or contingency has occurred. Such person or persons must
make a written declaration under penalty of false swearing that such event or contingency
has occurred in order to make this document effective. Completion of this provision is
optional.
The following person or persons are designated to determine conclusively that the above-
specified event or contingency has occurred:
Signed: Principal
Signed: Agent
It is my desire and intention that this power of attorney shall not be affected by my
subsequent disability, incapacity, or mental incompetence. Any and all acts done by the Agent
pursuant to the powers conveyed herein during any period of my disability or incapacity shall
have the same force and effect as if I were competent and not disabled.
I may, at any time, revoke this power of attorney, but it shall be deemed to be in full
force and effect as to all persons, institutions, and organizations which shall act in reliance
thereon prior to the receipt of written revocation thereof signed by me and prior to receipt of
Georgia Appleseed Heirs Property in Georgia Attorney Training Manual Page 103
actual notice of my death.
I do hereby ratify and confirm all acts whatsoever which my Agent shall do, or cause to
be done, in or about the premises, by virtue of this power of attorney.
All parties dealing in good faith with my Agent may fully rely upon the power of and
authority of my Agent to act for me on my behalf and in my name, and may accept and rely on
agreements and other instruments entered into or executed by the agent pursuant to this power of
attorney.
This instrument shall not be effective as a grant of powers to my Agent until my Agent
has executed the Acceptance of Appointment appearing at the end of this instrument. This
instrument shall remain effective until revocation by me or my death, whichever occurs first.
Georgia Appleseed Heirs Property in Georgia Attorney Training Manual Page 104
IN WITNESS WHEREOF, I have hereunto set my hand and seal on this day of
, 20 .
Principal
WITNESSES
Note: A notarized signature is not required unless you have initialed paragraph 3 or 4
regarding property transactions.
Notary Public
State of Georgia
County of
(Notarial Seal)
Georgia Appleseed Heirs Property in Georgia Attorney Training Manual Page 105
EXHIBIT 2: ACCEPTANCE OF APPOINTMENT
I, (print name), have read the foregoing Power of Attorney and am the
person identified therein as Agent for (name of grantor of
power of attorney), the Principal named therein. I hereby acknowledge the following:
I owe a duty of loyalty and good faith to the Principal, and must use the powers granted to me
only for the benefit of the Principal.
I must keep the Principals funds and other assets separate and apart from my funds and other
assets and titled in the name of the Principal. I must not transfer title to any of the Principals
funds or other assets into my name alone. My name must not be added to the title of any funds or
other assets of the Principal, unless I am specifically designated as Agent for the Principal in the
title.
I must protect and conserve, and exercise prudence and caution in my dealings with, the
Principals funds and other assets.
I must keep a full and accurate record of my acts, receipts, and disbursements on behalf of the
Principal, and be ready to account to the Principal for such acts, receipts, and disbursements at
all times. I must provide an annual accounting to the Principal of my acts, receipts, and
disbursements, and must furnish an accounting of such acts, receipts, and disbursements to the
personal representative of the Principals estate within 90 days after the date of death of the
Principal.
I have read the Compensation of Agent paragraph in the Power of Attorney and agree to abide by
it.
I acknowledge my authority to act on behalf of the Principal ceases at the death of the Principal.
I hereby accept the foregoing appointment as Agent for the Principal with full knowledge of the
responsibilities imposed on me, and I will faithfully carry out my duties to the best of my ability.
Dated: , 20 .
(Signature)
(Address)
Note: A notarized signature is not required unless the Principal initialed paragraph 3 or
paragraph 4 regarding property transactions.
Georgia Appleseed Heirs Property in Georgia Attorney Training Manual Page 106
I, , a Notary Public, do hereby certify that
personally appeared before me this date and acknowledge the due execution of the foregoing
Acceptance of Appointment.
Notary Public
(Notarial Seal)
Georgia Appleseed Heirs Property in Georgia Attorney Training Manual Page 107
EXHIBIT 3: FORM OF POWERS OF ATTORNEY
STATE OF GEORGIA
COUNTY OF
To perform all acts necessary, appropriate and incidental in connection with the
negotiation, consummation and closing of the purchase of that certain real property located in
Land Lot , District, County, Georgia, with an address of
, and being more particularly described on Exhibit A attached hereto and by
this reference made a part hereof, upon such terms and conditions as my attorney- in-fact shall
approve; in connection therewith and not by way of limitation, said attorney-in-fact is hereby
specifically authorized to execute and deliver all documents, contracts, agreements, deeds,
mortgages, security deeds, deeds to secure debt, deeds of trust, assignments, guarantees,
indemnities, promissory notes, affidavits, easements, subordination agreements, closing
statements and any and all such other instruments or documents or amendments thereto as said
attorney-in-fact may deem necessary, appropriate, advisable or incidental to the purchase of said
property and to deliver any and all consideration therefore.
I do hereby ratify and confirm all that my said attorney-in-fact shall do or cause to be
done by virtue hereof.
This Special Power of Attorney is a special power of attorney coupled with an interest
and is irrevocable and shall be effective from its execution until , 20 , and until
such date all persons and entities may rely on this Special Power of Attorney as being in full
force and effect.
Georgia Appleseed Heirs Property in Georgia Attorney Training Manual Page 108
IN WITNESS WHEREOF, I have hereunto set my hand and seal this day of
, 20 .
Printed name:
Unofficial Witness
Notary Public
My commission expires:
(Notarial Seal)
Georgia Appleseed Heirs Property in Georgia Attorney Training Manual Page 109
The Georgia Heirs Property Law Center, Inc.