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Heirproperty Attorney PDF
Heirproperty Attorney PDF
INTRODUCTION
ACKNOWLEDGMENTS
CHAPTER 4 INTESTACY
Section 1 Intestate Heirs
Section 2 Probate Administration
Section 3 Administration of Decedent’s Property
Exhibit 1: Heirs Determination Worksheet
Exhibit 2: Probate / Administration Processes
CHAPTER 7 PARTITION
Section 1 Statutory Partitions
Section 2 Equitable Partitions
Exhibit 1: Sample Notice of Application
Exhibit 2: Sample Complaint for Partition In Kind
Exhibit 3: Sample Notice of Writ
In 2008, the YPC adopted heir property as its signature project, and Georgia Appleseed was
awarded a two-year University of Georgia School of Law Cousins Public Interest Fellowship to
explore heir property concerns in Georgia. Real estate attorney Crystal Chastain Baker was
named to the Cousins Fellowship.
a. To provide low income landowners of heir property with the necessary tools to protect
and preserve their property;
b. To engage service providers in Georgia to offer pro bono services to address and remedy
problems associated with heir property; and
“Heir property” is the phrase used to describe real property passed to heirs without
benefit of a will or probate. 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 property as an asset to economic gain and security, 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. In Georgia, where many heir property
owners are lower-income, rural African-Americans, loss of heir property often has social,
cultural and economic impact on the surrounding community.
This Heir Property in Georgia Attorney Training Manual has been created to guide non-
real estate attorneys through an understanding of the laws of intestacy and risks associated with
heir property. It provides tools to navigate pro bono attorneys through the process of perfecting
title and includes an important section on professionalism and ethics that covers issues that heir
property may generate. A series of scenarios featuring fictitious heir 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. It is presented in loose-leaf format to accommodate future updates
and addenda. The forms included are for illustrative purposes only; users of the manual must
seek current forms from the appropriate court or agency, where applicable.
A supplemental tool available for heir property clients and attorneys is the user friendly,
information manual, Heir Property in Georgia, that covers such topics as property basics, steps
to protect one’s land, and the importance of a will. It is online at www.GaAppleseed.org/heir.
Future goals of the YPC address long-term aspects of the Heir Property project, including
creating a sustainable, stand-alone 501 (c) 3 legal clinic that serves the needs of low-income
owners of heir property and reforming Georgia’s partition law. Bridging the gap until that time,
however, are attorney volunteers generously providing professional services pro bono to help
disadvantaged heir property owners to protect their property interests and to enhance their
economic security. We extend our sincerest appreciation to our Heir Property Project volunteer
practitioners and to the many legal volunteers who have helped to bring this Manual to fruition.
We would like to thank the following individuals and organizations for their participation
and support of this project.
Collaborative Partners
• UGA School of Law Public Interest Practicum
• Georgia Appleseed Center for Law and Justice
• Alabama Appleseed
Financial Supporter
Cousins Public Interest Fellowship
Cover Photograph
Janice F. Dyer, Auburn University, Department of Agricultural Economics and
Rural Sociology
A lawyer is a representative of clients, an officer of the legal system, and a citizen having
special responsibility for the quality of justice. As a representative of clients, a lawyer serves as
an advisor, advocate, negotiator, intermediary, and evaluator. As an advisor, a lawyer provides a
client with an informed understanding of the client's legal rights and obligations and explains
their practical implications. As an advocate, a lawyer zealously asserts the client's position under
the rules of the adversary system. As a negotiator, a lawyer seeks to produce advantageous
results for the client while staying consistent with the requirements of honest dealing with others.
As an intermediary between clients, a lawyer seeks to reconcile their divergent interests as an
advisor and, to a limited extent, as a spokesperson for each client. As an evaluator, a lawyer
examines a client's legal affairs and reports about them to the client or to others. As a citizen, a
lawyer should seek improvement of the law, the administration of justice and the quality of
service rendered by the legal profession. As a member of a learned profession, a lawyer should
cultivate knowledge of the law beyond its use for clients, and employ that knowledge to reform
the law and to strengthen legal education. A lawyer should be mindful of deficiencies in the
administration of justice and of the fact that some people cannot afford adequate legal assistance
and should, therefore, devote professional time and civic influence in their behalf. A lawyer
should aid the legal profession in pursuing these objectives and should help the bar regulate itself
in the public interest.
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.
Accordingly, in the Georgia Rules of Professional Conduct (“Rule”), the comments to Rule 2.2
state: “A lawyer acts as intermediary under this Rule when the lawyer represents two or more
parties with potentially conflicting interests.” 1 Because confusion can arise as to the lawyer's
role when each party is not separately represented, as their lawyer you must make this
relationship clear and in writing.
1
GEORGIA RULES OF PROFESSIONAL CONDUCT Rule (2009).
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 lawyer’s 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 lawyer's 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 heir 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 lawyer's 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 in the client’s legal ability to remain on the
property, which is of utmost importance in the heir 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
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.
Joseph’s 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. Rita’s 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
Georgia’s 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
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.
In this situation, it might be advisable to send a letter to all of the identified heirs, with a
request to voluntarily transfer their interest in the land to Betty by executing a quitclaim deed.
By informing the owners of the actual value of the land, the costs to enforce a partition sale, and
the actual value they would receive after reimbursing Betty for tax payments and property
upkeep, they might be willing to hand over their interest. This method is just one of many ways
peaceful negotiations can clear and consolidate title.
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, and she does not have the assets to buy them
out, 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
mother’s 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.” After the buyer has even a
nominal interest in the land, the buyer can demand a partition sale to obtain rights to the entire
land.
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 heir
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 client’s 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.
PLEASE PRINT:
Applicant’s Name: ______________________________________________________________
Soc. Sec.#: ____________________________________________________________________
Address: ___________________________________ County: ___________________________
City: ___________________________________ State: _______________ Zip: ____________
Home Telephone: ___________________________ Work Telephone: ____________________
Cellular Telephone: _________________________ Other Telephone: ____________________
(Relative Not Living with You)
Email Address: _________________________________________________________________
Occupation: _______________________________ Employed By: _______________________
Spouse: ___________________________________ Employed By: _______________________
DATE OF BIRTH: ____ / ____ / ____ AGE: ______ SEX: □ Male □ Female
Is this your first time talking with an attorney about this matter? □ Yes □ No
Adverse Party: _________________________________________________________________
Adverse Party’s Address: ________________________________________________________
HOUSEHOLD RESIDENTS:
Name Age Relationship Employer
ASSET:
Source Value Amount Owed Monthly Payment
□ Cash □ Saving/Checking
□ Home/Land
□ Vehicles
□ Other
EXPENSES:
Source Monthly Payment Source Monthly Payment
□ Employment Related □ Child Support
□ Medical / Nursing Expenses □ Alimony
□ Age / Disability Expenses □ Transportation
□ Dependent Care □ Other ___
□ Paying Current Taxes
□ Property Taxes
TAXES
3. Name and contact information of person listed on tax rolls as owner.
• Have you paid the taxes on the property?
• Who has paid the taxes on the property?
• For how long?
• Do you have receipts or other documents related to payment of taxes?
• Please provide a copy of your existing tax bill.
4. Have the property taxes been paid in a timely manner?
• Have you been paying the property taxes regularly?
• Have you received any communications/letters from the county tax collector?
5. Individual’s relationship to person listed on tax rolls as owner?
6. Names of everyone living on or using the property (including a description of each person’s
use and relationship (familial or otherwise) to individual).
• Is anyone else living at the property?
• What is that person’s relationship to you?
• Do they live there, receive mail there?
• Do they work/farm the property?
LEGAL PROCESS
15. Was property ever legally divided up, or subjected to any legal process?
16. Do you know whether anyone with legal interest to land has a default on a payment
obligation that could implicate the land?
PROPERTY CHARACTERISTICS
25. What is the property size?
• Less than 10 acres
• 10-49 acres
• 50-00 acres
• 100-999 acres
• Over 1,000 acres
26. Does the property have any special historical, cultural or community significance?
27. Briefly describe your personal connection to this land as well as your family’s connection to
this land.
28. Are there improvements on the property? If so, what are they?
29. Does the property have any special African American cultural significance?
• History of Black ownership or displacement:
• Historic structures:
• Cultural sites:
• Designated historic district:
• Local historic landmark:
30. Is there water on this land? If so, what kind?
31. What type of natural habitat is on the land – plant and/or animal?
32. Does this land have an agricultural use? ____. If so what kind?
• Contains prime or productive agricultural soil
• Has favorable micro-climate, specify
• Buffers productive agricultural land
33. Does this land have a forest? ____ If so what kind?
• Working Forest
• Subsidies/programs
• Technical Assistance
• Management Plan
• Timber Forestry
• Solis Question
35. Is the land used currently or in the future do you plan to use the land for any of the following
recreational activities?
Walking or hiking
ATV/Motorcycle/Snowmobile riding
Camping
Large group tours
Wildlife viewing
Commercial recreation
Lawful hunting or fishing
Environmental or other education
Horseback riding
Public access
Non-motorized biking
Other(s):
Describe:
36. Is the land used currently or in the future do you plan to use the land in any of the following
ways?
Wetland enhancement or pond creation
Fish or wildlife habitat enhancement
Topographical grading
Tree or vegetation clearing/planting
Road/trail building
Landing pad or airstrip construction
Restoration of streams or buffers
Home or building construction
Other(s)
Public access
Describe:
39. What are the critical factors necessary for the success of the idea? How does the client plan
to use the property in the future?
40. 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
Other(s)
41. Does the client wish to sell or donate a conservation easement? If so, why is the client
interested in seeing the property conserved?
Maintain open space
Protect special natural feature or wildlife
Estate planning
Avoid family conflicts over future use
Tax credit/deduction (for donation only)
Other(s)
42. Has the client discussed conservation options with any other organizations or agencies? If
so, who?
43. In what ways, if any, does the client plan to remain involved with the land?
CONSERVATION VALUES
44. How has the client witnessed the natural landscape change during their ownership?
45. Wildlife or botanical species sightings (either personal or second-hand):
46. Are there any cultural or historic features on the property?
47. Is the property visible from any public road or trail?
48. Does the client see any obstacles to conservation of the land?
Dear _______:
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 heir 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 Property’s 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 or fair market value
because of the forced timed conditions of the court sale where there are willing buyers,
but “court-ordered” sellers. In these instances, heir 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)
Owning land, and more particularly owning a home, is often the most important asset that
individuals will have in their lifetime. Frequently, in order to take advantage of such ownership,
it is vital to establish that the homeowner has "good title" to his or her property. Establishing
good or insurable title enables an individual to do many things, including: (i) obtaining
financing, (ii) establishing proof of residency for purposes of obtaining a drivers license or a
passport, (iii) obtaining reconstruction aid from certain governmental programs, (iv) settling title
disputes, (v) leasing the property and (vi) being able to sell the property to a third party. In
addition, since many people reside in their home throughout their lifetime, when they die they
want to be able to leave this asset to their children or other heirs. To settle their estate, their heirs
will need to establish that good title to the property was vested in the decedent.
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
expected when a more formal title search is completed. When conducting the client interview,
ask: (i) if when the client acquired title, a deed was delivered to him or her, or if the client
believes that title was acquired on some other basis and (ii) if the client can provide you with any
mortgage loan documentation, mortgage bills, tax bills, leases or other correspondence or
relevant materials that the client received in connection with his or her ownership of the
property. Generally speaking, bills related to the client’s ownership of the property may be
secured by some type of encumbrance on the property (e.g. a mortgage lien or tax lien). The
client may also be aware of encroachments, tenants, squatters, or disputes with abutting property
owners that relate to the client’s property. Each of these situations may indicate a potential
encumbrance on the client’s property and will be discussed in detail below.
In addition to the client interview, a very valuable resource for ascertaining the current
state of your client’s 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 client’s 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 client’s
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 client’s
property. A good survey will accurately show the location of any improvements on your client’s
property, the boundary lines of your client’s property, and the location of any easements of
record. If a survey is available, you should review it along side 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 client’s 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 surveyor’s certification contained on the survey
may also reveal other factual matters that may not otherwise be ascertainable. If no surveys are
available for your client’s 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
client’s 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
other structures near an abutting property) or adverse possessors. A visual inspection could also
reveal the location of any potential easements. Look for any utility lines or common driveways
that your client may be sharing with an abutter, or access roads or driveways to your client’s
property that do not appear to be within the boundaries of your client’s property.
Typically when a property owner obtains third party financing for the acquisition or
development of the property, the owner’s 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 original 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 client’s 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 client’s property. Once a release or quit
claim deed with the proper title references is recorded, the old security deed will no longer
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
making this determination. If so, it may be possible for the title insurance company to insure the
property despite of the security deed because the risk of a title claim to the title insurance
company is very small. It would be unlikely for a lender to foreclose upon the property. Also,
if the security deed is very old, the stated maturity date of the underlying loan may have already
passed, and the title company may be able to remove the security deed as an exception to the title
policy using standard title practices in Georgia.
Similar to a lien created by a security deed, there may be other liens on the client’s
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 commissioner’s office and paying in full the taxes due (including any interest and penalties).
A statutory mechanic’s 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. If the client indicates that there has been no recent work done to the property,
then an exception for any mechanic’s 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. Under Georgia
law, an action to collect on a claim must be filed within 12 months of when the claim became
due. If the statutory notice is not timely filed in the deed records, the title insurance company
should disregard this type of lien.
Your client or a prior owner in your client’s 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 decedent’s
death. Heirship 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 client’s 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 client’s chain of title as a result of the property passing to your client via intestate
1
Note that certain states and certain title companies might have a strong preference for a judicial determination of
heirship 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 heirship 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 client’s property may impact your
client’s 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 owner’s property. An adverse possession claim could
negatively impact your client’s 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 client’s 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 client’s property should also be
obtained. If you believe that there is a legitimate potential adverse possession claim against your
client’s 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 decedent’s 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 client’s property. If a decedent in the
chain of title to your client’s property died intestate, the decedent’s heir may have filed an
Affidavit of Descent or completed a judicial heirship 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 scrivener’s 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 scrivener’s errors include small typographical errors in the legal
description, a misspelling of a grantor’s 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
scrivener’s 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 scrivener’s errors since a new deed will be effective as of the new execution date. Note
The corrective deed can be used to fix typographical errors in the legal description, but
you should treat any discrepancy in the legal description as an opportunity to confirm that the
property intended to be covered in your client’s vesting deed, survey and/or title abstract matches
your client’s expectations about the property your client believes he or she owns.
A property’s 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 property’s driveway is located
completely within the perimeter of the property’s 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 client’s property. If this problem exists, you should have a title search done on the
abutting landowner’s property, to see whether the owner of your client’s 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 client’s 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 client’s 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 client’s property may have a building or other structure encroaching onto an
abutter’s property. Similarly, an abutter of the client may be encroaching onto the client’s
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 client’s
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.
Verifying clear title to real estate in Georgia can be somewhat problematic. Under
Georgia law, title to real estate automatically vests in the beneficiary upon the death of the
owner. As a result, personal representatives (a term which includes executors of estates of those
who die with wills and administrators of estates of individuals who die intestate) in Georgia do
not have to execute deeds to memorialize the passing of title, as many other states require.
Without a deed to evidence the chain of title, it can be difficult for clients to prove they are the
rightful owners of property. To explain how title to real estate is verified, start with the
following scenario:
John Doe has lived in the family home in Fulton County since his mother’s death in 1985.
The last deed to the property was recorded in 1950 and shows John’s 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
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 tenant’s interest does not automatically pass to the survivor but instead
passes under the terms of the deceased tenant’s 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 Doe’s 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 John’s 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, Georgia’s law of intestate succession determines
how a decedent’s assets will pass. Refer to the Intestacy Chapter, Section 1 for an explanation of
Georgia’s intestacy laws.
If there were no probate proceedings, you will need to file a petition for probate of the
owner of record’s 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 record’s 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 Doe’s 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 John’s 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 John’s grandmother were
indeed initiated in Fulton County. The property passed to John’s mother who was an only child.
John Doe’s mother had a will in which she bequeathed the property to him, but there were no
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 John—and 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 decedent’s spouse and children.
The spouse takes the same amount as each of the decedent’s 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. 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 parent’s 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 decedent’s surviving parents.
If there are no members of Group II, then equally to members of a class (Group III)
consisting of the decedent’s surviving siblings, per stirpes, and if none, equally to the decedent’s
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 decedent’s 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 decedent’s surviving uncles and aunts, per stirpes, and if none, equally to the
decedent’s 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 decedent’s
property is located.
In an intestate estate, the surviving spouse or sole heir 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 the county
where the decedent’s 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 representative’s
identification of each of the decedent’s 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
seeking appointment must also file (i) a bond for the decedent’s estate “with good and sufficient
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. 3
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 decedent’s property can be broken down into two categories – probate assets and
non-probate assets.
(a) Probate Property. Probate assets are those that are titled in the decedent’s name alone.
The probate assets can be further broken down into real property and personal property. Real
Property consists of all interests in real estate. Personal Property is everything else. In most
cases, particularly where many years have passed, the only 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 heir or legatee upon the death of the owner. 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 decedent’s
debts and taxes owed by the estate. Generally speaking if the decedent owned only real estate,
probate is generally not filed until an heir requires a title that is marketable and documented in
the land records. This creates a problem with the ability to pass clean title to the property, as the
chain of title is not memorialized in the land records. By going through the probate process, a
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
personalty only; however, where real property is sold and converted into personalty, 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 Property. 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 decedent’s 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 representative’s first duty is to
inventory and collect all probate assets owned by the decedent.
When filing a probate for a client, always verify with a title insurance company the
procedure. 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 decedent’s 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 decedent’s debts, object to invalid and time-barred
debts, and pay all valid debts and taxes owed by the decedent or the estate.
This process begins with the publication of a notice to the decedent’s 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 estate’s 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 equal priority to whom distribution is made before notice of such claims is
brought to the personal representative and they may not hold the personal representative liable
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 Year’s 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 Year’s Support
statute, without the need for probate administration. The practitioner is well advised to consider
Year’s Support to determine whether it is the most efficient, and perhaps alternative, method to
achieve the client’s goals. The year’s 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 Year’s 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 decedent’s 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.).
4
However, a testator by will may make provision for the spouse in lieu of Year's 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 Year’s Support.
5
Additionally, the lien of certain ad valorem taxes on real estate is divested by the award of property as Year’s
Support.
B.
Name of Proposed Petitioner: __________________________________
Address: __________________________________
__________________________________
b. If a person is named in (a) immediately above and that person has died since the
decedent, show 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 decedent’s death? _______________________________________________
NOTE: IF ALL OF THE CHILDREN OF DECEDENT ARE ALIVE, YOU MAY STOP.
Deceased Great-grandchildren
NOTE: IF ALL OF THE BROTHERS AND SISTERS OF THE DECEDENT ARE ALIVE,
YOU MAY STOP.
NOTE: IF ALL OF THE NIECES AND NEPHEWS OF THE DECEDENT ARE ALIVE, YOU
MAY STOP.
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.
This Exhibit lists the probate / administration procedures available for a decedent’s estate
either when a will exists or when it does not.
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 heir.
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 heir.
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
heir 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.
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 client’s 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 circuit 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 client’s 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
interest therein.” 3 This form of quiet title suit has become a method of clearing clouds to title
1
O.C.G.A. § 23-3-40 (2009).
2
O.C.G.A. § 23-3-60.
3
Id.
(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 client’s 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 the same proof of title as 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 the alleged cloud to title is actionable. For a
conventional quia timet suit, the alleged cloud to title must fall within the specific definition of
what creates a cloud to title and a specific instrument creating the cloud must be identified. In
Thompson v. Etowah Iron, the court held that in order for an instrument conveying real estate to
constitute a “cloud upon title,” the instrument must constitute an apparent title. 10 This decision
is the basis for O.C.G.A. § 23-3-42, which specifies when an instrument constitutes a cloud to
title.
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. Hawk’s Landing Homeowners Association, 647 S.E.2d 579 (2007).
10
91 Ga. 538 (1893).
(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 apprehend 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
For a quia timet against all the world suit, there is no requirement that a specific
instrument creating a cloud be identified.
(a) 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 client’s possession and ownership (or claim of
ownership) of the property; and
(3) Specific identification of the instrument that creates a cloud on the title. 12
(ii) A petition to commence a quia timet against all the world action 13 shall be filed
in the county in which the land is located and shall contain and/or allege the following:
(2) Description and origin of the client’s possession and ownership (or claim of
ownership) of the property;
(3) Statement of whether the client’s interest is based upon a written instrument
(whether the same be a contract, deed, will, or otherwise) or adverse possession or
both;
11
Id.
12
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).
13
Quiet Title Act, O.C.G.A. § 23-3-60.
(5) List of names and addresses of any possible adverse claimants; and
(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. 14
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 client. 15 It has been 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. 16
Also, the client must file a notice of lis pendens when the petition is filed. 17 The court,
upon receipt of the petition, forwards the petition to a special master. 18 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. 19
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 sheriff’s 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. 20
The special master next ascertains the extent of the petitioner’s title and reports his
findings to the superior court. The superior court then issues a final decree, which must be
recorded in the clerk’s office. Additionally, a marginal reference to the decree must be entered
upon any recorded instrument stated to be affected by the decree. 21 Prior to the special master
issuing his decree, any party has a right to demand a jury trial. 22 Any person not previously a
party has a right to intervene within 30 days from the entering of the final decree. 23
14
O.C.G.A. § 23-3-62.
15
Id.
16
Capers v. Camp, 244 Ga. 7 (1979).
17
O.C.G.A. § 23-3-62.
18
O.C.G.A. § 23-3-53.
19
O.C.G.A. § 23-3-65.
20
O.C.G.A. § 23-3-66.
21
O.C.G.A. § 23-3-67.
22
O.C.G.A. § 23-3-66.
23
O.C.G.A. § 23-3-69.
QUITCLAIM DEED
STATE OF ____________
COUNTY OF __________
THIS QUITCLAIM DEED (“Deed”) made this ___ day of _________, 20__, between
_________________________ ("Grantor"), whose mailing address is
_______________________________________, and ________________________ ("Grantee"),
whose mailing address is _______________________________________ (the words "Grantor"
and "Grantee" to include their respective successors and assigns where the context requires or
permits).
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 Grantor’s 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 Grantor’s 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 Expires:
(Notarial Seal)
STATE OF GEORGIA
________________________, *
*
Plaintiff, * CIVIL ACTION FILE
*
v. * NO.____________________
*
ALL PERSONS KNOWN OR *
UNKNOWN WHO CLAIM OR *
MIGHT CLAIM ADVERSELY *
TO PLAINTIFF’S TITLE TO *
REAL PROPERTY KNOWN AS *
___________________, *
_______________ COUNTY, *
GEORGIA, *
*
Defendants. *
____________________________ *
1.
Plaintiff resides at ____________ (or other appropriate fact pattern for subject property). The
Superior Court of ____________ County has in rem jurisdiction over this matter pursuant to
O.C.G.A. § 23-3-61. Further, 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
_________________, __________County, Georgia, according to the present system of
numbering houses in ____________ County, Georgia, and is more particularly described as:
(legal description here), a true and correct copy of which is attached hereto as Exhibit A.
6.
(Insert Further Information for Quiet Title Argument as Needed)
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 ________ 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 landowner’s 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.
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.
As required by O.C.G.A. § 23-3-61, a Notice of Lis Pendens is being filed
contemporaneously with this Petition.
BY: ______________________________
Personally appeared before me the undersigned, ____________, who, being first duly
sworn, depose and say on oath that he is the Plaintiff in the within and foregoing verified Petition
to Establish Title Against All the World and that the facts set forth therein are true and correct to
the best of his knowledge.
____________________________________
______________________________
Notary Public
(Notarial Seal)
Notice is hereby given pursuant to O.C.G.A. § 44-14-610 that the above-styled action
was filed on____________, 20__, at _________ o’clock __.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 _______________
BY: ______________________________
State Bar No.
Attorney for Plaintiff
The 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.
SO ORDERED, this ____ day of __________________, 20__.
_________________________________
Honorable _____________________
Judge, Superior Court
______________County, Georgia
Prepared by:
When assisting a client in resolving title issues, the attorney should evaluate, among other
things, whether the client has gained title to the property by adverse possession. Title 44,
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 44-5-123 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 client’s 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:
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 buildings. 2 Note that payment of
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
possessor’s 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 remainderman’s 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
wife’s property. 17 Note that devise of real property in a will, 18 a letter containing a gift of land, 19
and instruments dividing land 20 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 possessor’s 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 possession.
Note, however, that unlike most jurisdictions, in Georgia the prescriptive period merely tolls
13
1 DANIEL F. HINKEL, PINDAR’S 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 2 Ouster 24
Because each co-owner of real property is entitled to possession of the whole, no
cotenant or joint tenant may object to the possession of another. Therefore, the possession of any
one cotenant or joint tenant is not adverse to another, absent an ouster. This may be a common
problem for Georgia residents who, by virtue of intestate succession or devise, have obtained
some form of joint title along with various related cotenants.
Section 3 Abandonment
Once an adverse claimant’s 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. These situations often arise between family members who receive undivided fractional
interests in property from deceased relations via intestate succession. 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 within 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 a statutory
partition proceeding (Section 1), as well as when an equitable partition is appropriate (Section 2).
Sample pleadings are included as exhibits at the end of the chapter.
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 grantor’s estate, or otherwise. However, to the extent the client’s 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 shall be divided among the common owners. 1
If the client is a life tenant with respect to certain real property, they 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 (see below), the court must determine that the property is capable
of a fair and equitable partition. 2 Generally, a partition by a life tenant will only be effective
during the life of the life tenant. 3
1
O.C.G.A. § 44-6-160 (2009).
2
O.C.G.A. § 44-6-172 (2009).
3
Teasley v. Hulme, 150 Ga. 495, 104 S.E. 150, 153 (Ga. 1920).
Generally, the client should have actual legal title to the property to apply for partition. 6
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. 7 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. 8
(a) Notice. Should the client decide to apply for a writ of partition, he or she must first give
the other concerned parties at least twenty days’ notice of his or her intention to make the
application. If any of the other parties is a minor, a person with a mental or cognitive disability,
or a beneficiary of a trust, such notice must be served on such party’s 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.
(i) Jurisdiction and Venue: The Georgia Superior Courts have jurisdiction over
partition proceedings. The client should apply for partition in any county in which all or a
portion of the land lies. 11
(ii) Application: The client may commence a partition action in Superior Court for a
writ of partition. The application must describe the premises to be partitioned as well as the
shares and interests of the parties, and must set forth clearly the facts and circumstances of the
case. 12 The application may, but does not have to, indicate whether the client would prefer a
partition in kind or by sale, and/or specify the interest of the client and any other party having an
interest in the land. 13 A Sample Complaint to Partition in Kind (Exhibit 2) is attached to this
chapter.
4
See City of Warm Springs v. Bulloch, 213 Ga. 164, 97 S.E. 2d 582, 583 (Ga. 1957).
5
Leggitt v. Allen, 85 Ga. App. 280, 69 S.E. 2d 106, 108 (Ga. App. 1952).
6
O.C.G.A. § 44-6-160 (2009).
7
Adams v. Butler, 135 Ga. 405. 69 S.E. 559, 560 (Ga. 1910).
8
See Mills v. Williams, 208 Ga. 425, 67 S.E. 2d 212, 217 (Ga. 1951).
9
O.C.G.A. § 44-6-162 (2009).
10
O.C.G.A. § 44-6-171 (2009).
11
O.C.G.A. § 44-6-160 (2009).
12
Id.
13
See Wright v. Hill, 140 Ga. 554 (1913); Dollar v. Dollar, 214 Ga. 499 (1958).
(c) 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
cast doubt as to the client’s claims, a jury will try the issue. 15
(d) 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 client’s title and share of the
premises to be partitioned. If the court is able to confirm the client’s title and share, the court
will pass an order directing the clerk of the court to issue a writ of partition. 16 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. If this is the case, please refer to
Part 1.3 The Statutory Partition Process – Partitions by Sale, below. Otherwise, the court
will then direct the writ to five freeholders of the county to act as partitioners. 17
(e) Notice of Writ. The partitioners should give all parties at least eight days prior notice of
the time of executing the writ. 18 A sample notice of writ (Exhibit 3) is attached to this chapter.
(f) 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 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. 19
(g) 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. 20
(h) Final Judgment. If no objection is filed to the return of the partitioners, or if filed, the
jury on the trial finds for the client, the return of the partitioners will be made the judgment of the
court. Such judgment will be final with respect to all parties with interest in the property; to the
14
O.C.G.A. § 44-6-162 (2009).
15
O.C.G.A. § 44-6-165 (2009).
16
O.C.G.A. § 44-4-163 (2009).
17
Id.
18
O.C.G.A. § 44-6-164 (2009).
19
Id.
20
O.C.G.A. § 44-4-165 (2009).
(a) When is a Partition by Sale Appropriate. A sale by partition is appropriate when the
court is convinced that a fair and equitable division of the property cannot be made in kind. 23
Examples noted by statute include:
(i) Existing improvements make division practically impossible, or would make one
parcel more valuable than others.
(iii) The property is useful for the erection of mills and other machinery, and such
machinery could not be erected if the property was divided.
(iv) If a partition in kind would cause a depreciation of the value of the entire property.
(b) Partitions by Sale – The Process. Once the court has determined that a partition by sale is
appropriate, the court will appoint three 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 days after the
appraised price is established. 24
Within fifteen 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 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 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.
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
1.3(c) Public Sales, below).
21
O.C.G.A. § 44-4-166 (2009).
22
Id.
23
O.C.G.A. § 44-6-166.1 (2009).
24
Id.
Within ninety-five days after the appraised price is established, the client and other petitioners
shall convey their interest in the property to the remaining parties in interest, and the client and
other petitioners will receive payment equal to their proportionate share of the appraised price.
The client, the other petitioners, and the remaining parties in interest shall be liable for the costs
of the sale and proceedings in proportion to their respective shares in the property prior to sale.
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. Client, X
and Y apply for a partition, and the court determines that a partition by sale is
appropriate. The appraised value of Blackacre is $120,000.
Ten days after the appraised value is established, Y withdraws as a petitioner, leaving
Client and X as petitioners.
Twenty days after the appraised value is established, Y and Z agree that Z will pay 1/2 of
Y’s remittance obligation. Y and Z must combine to remit $60,000 to the court (50% of
the appraised value of $120,000) because Client’s and X’s total interest in Blackacre is
50%. Since Z has agreed to pay 1/2 of Y’s obligation, Z will pay $45,000, and Y will pay
$15,000.
Ninety-five days after the appraised value is established, Client and X convey their
interest in Blackacre to Y and Z. In return, the court pays Client $24,000 (20% of the
appraised value) and X $36,000 (30% of the appraised value).
Since Z paid $45,000 (75% of the amount required to pay Client and X for their shares of
Blackacre), Z will have a 67.5% undivided interest in Blackacre going forward. This
amount is based on the 30% undivided interest Z already owned, PLUS the 42.5%
interest Z acquired at the sale (Z paid for 75% of Client’s and X’s combined interest).
Y, who paid just $15,000 (25% of the amount paid to Client and X), will have a 32.5%
undivided interest in Blackacre. This amount is based on the 20% undivided interest Y
already owned, PLUS 12.5% interest Y acquired at the 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
Pursuant to O.C.G.A. § 44-6-170, “in any extraordinary case not covered by Code
Sections 44-6-160 through 44-6-169, the court may frame its proceeding and order so as to meet
the exigency of the case without forcing the parties into equity.” As such the court may award
attorneys’ fees. 25 The court’s discretionary power in the partition process is discussed below for
both in kind and by sale partition actions.
For a partition in kind, the court may require that an improved portion of the land may be
included in the allotment of the cotenant who improved it.26 Additionally, 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.” 27
Alternatively, in a partition by sale, the court may award to the purchaser a part
previously sold ultra vires by a co-owner. 28 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. 29
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. 30 For example, the court may
(but is not required to) vacate an order of sale for property where the reason for a sale has
changed during the course of proceedings. 31
The Superior Court’s 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 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. 32
25
See Nixon v. Nixon, 197 Ga. 426, 29 S.E. 2d 613 (Ga. 1944).
26
Walton v. Ward, 142 Ga. 385, 82 S.E. 1027 (Ga. 1914).
27
See Collier v. Bank of Tupelo, 190 Ga. 598, 10 S.E. 2d 61 (Ga. 1940).
28
Lane v. Malcolm, 141 Ga. 424, 81 S.E. 125 (Ga. 1914).
29
Baker v. Baker, 245 Ga. 525, 250 S.E. 2d 436 (Ga. 1998).
30
O.C.G.A § 44-6-170 (2009).
31
See McClain v. McClain, 241 Ga. 162, 243 S.E. 2d 879, 880 (Ga. 1978).
32
O.C.G.A. § 44-6-171 (2009).
Equity has jurisdiction only when the statutory remedy is insufficient, or particular
circumstances render an equity proceeding more suitable or just. 33 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.34 The following are examples of where equitable
partition is appropriate:
(a) Where the co-owners’ interest in the land was conveyed or is governed by unwritten
agreements, or by written agreements of questionable validity. 35
(b) Where the partition action involves equitable claims, such as a claim for an accounting or
an assertion of estoppel. 36
(d) Where the rights of a party to the dispute are based on prescription. 38
(f) Where interests of co-owners cannot be definitely ascertained and set apart by law. 40
(g) In divorce proceedings, where property is jointly owned by husband and wife. 41
(h) Where parties to the proceedings have claims for expenses those parties incurred in
preserving the estate, or for rents received by other parties with respect to the estate. 42
33
O.C.G.A. § 44-6-140 (2009).
34
See Burnham v. Lynn, 235 Ga. 207, 219 S.E. 2d 111, 112 (Ga. 1975).
35
See Coker Properties, L.P. v. Brooks, 278 Ga. 638, 604 S.E. 2d 766 (Ga. 2004).
36
Ibid.
37
Gorman v. Gorman, 239 Ga. 312, 236 S.E. 2d 652, 653 (Ga. 1977).
38
Bailey v. Johnson, 247 Ga. 657, 278 S.E. 2d 384, 385-6 (Ga. 1981).
39
See Chaney v. Upchurch, 278 Ga. 515, 603 S.E. 2d 255, 256 (Ga. 2004).
40
Fountain v. Davis, 71 Ga. App. 1, 29 S.E. 2d 798, 803 (Ga. App. 1944).
41
See Reaves v. Reaves, 244 Ga. 109, 259 S.E. 2d 52, 53 (Ga. 1979).
42
See Taylor v. Sharpe, 221 Ga. 282, 144 S.E. 390, 391-2 (Ga. 1965).
The Georgia Superior Courts have jurisdiction over equitable partition proceedings. 43
The client should apply for partition in the county in which the defendants reside. 44
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. 45
In every case, the court will mold its decree to meet the general justice and equity of each
cotenant and in its discretion may postpone or deny either a partition or a sale if it appears that
the present or prospective interest of any cotenant may not be protected thereby.” 46 The court
may be flexible when crafting its remedy and each partition or sale is handled on a case-by-case
basis. 47 The decree on a proceeding for equitable partition will cause title to be conveyed; no
deed or other conveyance document is required. 48 This decree should be recorded in the land
records in the county in which the property is located to assure clear title and for the reference of
future landowners, title examiners, and attorneys.
43
Burnham v. Lynn, 219 S.E. 2d 111 (Ga. 1975).
44
Roberts v. Burnett, 164 Ga. 64, 137 S.E. 773 (Ga. 1927).
45
Cock v. Calloway, 141 Ga. 774, 82 S.E. 286 (Ga. 1914).
46
O.C.G.A. § 44-6-141 (2009).
47
Chaney v. Upchurch, 603 S.E. 2d 255, 257 (Ga. 2004).
48
O.C.G.A. § 44-6-142 (2009).
You are hereby notified that I shall 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.
___________________
Attorney for Plaintiff
___________________
State Bar No.
___________________
Address
___________________
Telephone Number
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.
Witness our hands and official signatures, this ____________ day of ____________, 20___.
___________________
___________________
___________________
___________________
___________________
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; owner’s contact information; description of property condition and physical
improvements.
(e) Effect of Failure to File. If a return is not filed, the previous year’s 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 year’s 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 year’s return
would not apply.
(a) General Assessment Level. Property is assessed at 40% of its fair market value. 2
1
O.C.G.A. § 48-5-20 (2009).
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 property’s fair market and
assessed values are sent to taxpayers. 10
(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.
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 sheriff’s sales are advertised in the applicable county. Qualifications for
official newspapers are set forth in Section 9-13-142 of the Georgia Code.
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.
(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 sheriff’s 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
22
O.C.G.A. § 48-3-21.
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.
(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 sheriff’s 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
33
Id. § 44.
34
Id. § 48.
35
Id. § 47.
The judicial tax sale process may be used by either the county or, with respect to
municipal taxes or by agreement with the county, the municipality. 37 The authority seeking to
use this process must first adopt an ordinance or resolution implementing the statutory process. 38
An ad valorem tax foreclosure may not be initiated until 12 months after the date on which the
taxes become delinquent. 39
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
36
O.C.G.A. §§ 48-4-75-81.
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. § 9-13-160-178 for conducting sheriff’s sales; see O.C.G.A. § 9-13-140-142 for
advertising sheriff’s sales.
47
Id. § 80
48
O.C.G.A. § 48-8-8
A power of attorney can be used in the state of Georgia to permit a third party to act on
behalf of another party. The party that is appointed as the attorney-in-fact by the power of
attorney: (i) becomes an agent of the principal, (ii) has a fiduciary duty to the principal, (iii) is
prohibited from taking any action that is adverse to the interest of the principal, (iv) cannot place
him or herself in a position where their duty or interest conflicts with that of the principal, and
(v) cannot make a secret profit as a result of the agency. 1
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-fact’s
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). 2
1
Ga. Jur. §15:1.
2
Ga. Jur. §15:2.
3
O.C.G.A. §10-6-6(a) (2009).
4
Ga. Jur. §15:3.
5
O.C.G.A. §10-6-141.
6
O.C.G.A. §10-6-140.
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.
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
11
O.C.G.A. §10-6-142
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
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. _____________
11. Hiring Representatives: To hire accountants, attorneys at law, consultants, clerks, physicians,
nurses, agents, servants, workmen, and others and to remove them, and to appoint others in their
place, and to pay and allow the persons so employed such salaries, wages, or other remuneration,
as my Agent shall deem proper. _____________
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 Principal's
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.
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 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.
_________________________________
Principal
WITNESSES
_________________________________
_________________________________
Signature and Address
_________________________________
_________________________________
Signature and Address
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)
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 Principal's 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 Principal's
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
Principal's 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 Principal's 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.
______________________________
Notary Public
(Notarial Seal)
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.
___________________________________
Printed name:________________________
_______________________
Unofficial Witness
________________________
Notary Public
My commission expires:
(Notarial Seal)