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title-44•Title 44 — Property
Official Code of Georgia Annotated — Title 44. Property
Snapshot of the Georgia code as mirrored by FindLaw, current as of 2024-03-28.
As used in this title, the term “property” means:
(1) Realty and personalty which is actually owned;
(2) The right of ownership of realty or personalty; and
(3) That which is subject to being owned or enjoyed.
(a) As used in this title, the term “realty” or “real estate” means:
(1) All lands and the buildings thereon;
(2) All things permanently attached to land or to the buildings thereon; and
(3) Any interest existing in, issuing out of, or dependent upon land or the buildings thereon.
(b) The property right of the owner of real estate extends downward indefinitely and upward indefinitely.
(a) As used in this title, the term “personalty” or “personal estate” means all property which is movable in nature, has inherent value or is representative of value, and is not otherwise defined as realty.
(b) Stocks representing shares in a corporation which holds lands or a franchise in or over lands are personalty.
As used in this title, the term “estate” means the quantity of interest which an owner has in real or personal property. Any estate which can be created in realty may be created in personalty.
As used in this title in referring to property, the term “title” signifies the means whereby a person's right to property is established.
(a) Anything which is intended to remain permanently in its place even if it is not actually attached to the land is a fixture which constitutes a part of the realty and passes with it.
(b) Machinery which is not actually attached to the realty but is movable at pleasure is not a part of the realty.
(c) Anything detached from the realty becomes personalty instantly upon being detached.
Personalty is deemed to be in the possession of a party when that party's right to the property is accompanied by immediate actual or constructive possession.
(a) Property rights may exist in all animals, birds, and fish. To constitute property in those which are wild by nature as distinguished from domestic animals, they must be in the actual possession, custody, or control of the party claiming a property interest. Possession, custody, or control of wild animals may be obtained by taming or domesticating them, by confining them within restricted limits, or by killing or capturing them.
(b) Notwithstanding subsection (a) of this Code section, no property right shall be created in wildlife as defined by Code Section 27-1-2.
Anything deposited on realty by wild animals, birds, and fish except wildlife as defined by Code Section 27-1-2 shall belong to the owner of the realty. Honey deposited in a tree by bees shall belong to the owner of the tree even if the bees were hived by another person. The eggs and young of birds and the offspring of other animals and fish for as long as they remain unable to leave the land shall belong to the owner of the land.
The offspring of all animals follows the ownership of the mother and belongs to the owner of the mother at the time of birth.
(a) Unless otherwise expressly provided, the provisions of this title relating to estates of either real or personal property shall be applicable to both.
(b) The rules of construction applicable to estates of personalty shall be the same as those applicable to estates of realty.
One person may have the right of possession of certain property and another person may have the right to the property itself. A union of those rights constitutes a perfect title.
(a) As used in this Code section, the term:
(1) “Department” means the Department of Public Safety.
(2) “Private property” means any parcel or space of private real property.
(a.1) Any person or his or her authorized agent entitled to the possession of any private property shall have the right to remove or cause to be removed from the property any vehicle or trespassing personal property thereon which is not authorized to be at the place where it is found and to store or cause to be stored such vehicle or trespassing personal property, provided that there shall have been conspicuously posted on the private property notice that any vehicle or trespassing personal property which is not authorized to be at the place where it is found may be removed at the expense of the owner of the vehicle or trespassing personal property. Such notice shall also include information as to the location where the vehicle or personal property can be recovered, the cost of said recovery, and information as to the form of payment; provided, however, that the owner of residential private property containing not more than four residential units shall not be required to comply with the posting requirements of this subsection. Only towing and storage firms issued permits or licenses by the local governing authority of the jurisdiction in which they operate or by the department, and having a secure impoundment facility, shall be permitted to remove trespassing property and trespassing personal property at the request of the owner or authorized agent of the private property.
(b)(1) The department shall have the authorization to regulate and control the towing of trespassing vehicles on private property if such towing is performed without the prior consent or authorization of the owner or operator of the vehicle, including the authority to set just and reasonable rates, fares, and charges for services related to the removal, storage, and required notification to owners of such towed vehicles. No storage fees shall be charged for the first 24 hour period which begins at the time the vehicle is removed from the property, and no such fees shall be allowed for the removal and storage of vehicles removed by towing and storage firms found to be in violation of this Code section. The department is authorized to impose a civil penalty for any violation of this Code section in an amount not to exceed $2,500.00.
(2) In accordance with subsection (d) of this Code section, the governing authority of a municipality may require towing and storage operators to charge lower maximum rates on traffic moving between points within such municipality than those provided by the department’s maximum rate tariff and may require higher public liability insurance limits and cargo insurance limits than those required by the department. The governing authority of a municipality shall not provide for higher maximum costs of removal, relocation, or storage than is provided for by the department.
(c) In all municipalities, except a consolidated city-county government, having a population of 100,000 or more according to the United States decennial census of 1970 or any future such census a person entitled to the possession of an off-street parking area or vacant lot within an area zoned commercial by the municipality shall have the right to remove any vehicle or trespassing personal property parked thereon after the regular activity on such property is concluded for the day only if access to such property from the public way is blocked by a sturdy chain, cable, or rope stretched at least 18 inches above grade across all driveways or other ways providing access to the off-street parking area or vacant lot and there is conspicuously posted in the area a notice, the location of which must be approved by the municipality's police department, that any vehicle or trespassing personal property parked thereon which is not authorized to be in such area may be removed at the expense of the owner along with information as to where the vehicle or trespassing personal property may be recovered, the cost of said recovery, and information regarding the form of payment.
(d)(1) In addition to the regulatory jurisdiction of the department, the governing authority of each municipality having towing and storage firms operating within its territorial boundaries may require and issue a license or permit to engage in private trespass towing within its corporate municipal limits pursuant to this Code section to any firm meeting the qualifications imposed by said governing authority. The fee for the license or permit shall be set by such governing authority. The maximum reasonable costs of removal, relocation, and storage pursuant to the provisions of this Code section shall be compensatory, as such term is used in the public utility rate-making procedures, and shall be established annually by the governing authority of each municipality having towing and storage firms operating within its territorial boundaries; provided, however, that no storage fees shall be charged for the first 24 hour period which begins at the time the vehicle is removed from the property, and no such fees shall be allowed for the removal and storage of vehicles removed by towing and storage firms found to be in violation of this Code section.
(2) Towing and storage firms operating within a municipality's corporate limits shall obtain a nonconsensual towing permit from the department and shall file its registered agent's name and address with the department. The department may assess and collect an application fee in an amount to be determined by the commissioner and such amount shall not exceed the total direct and indirect costs of administering the program or activity with which the fee is associated. Pursuant to Code Section 45-12-92.1, the fees collected shall be retained by the department and expended solely for the purpose of implementing this Code section.
(e) Any person who suffers injury or damages as a result of a violation of this Code section may bring an action in any court of competent jurisdiction for actual damages, which shall be presumed to be not less than $100.00, together with court costs. A court shall award three times actual damages for an intentional violation of this Code section.
(f) It shall be unlawful and punishable by a fine of $1,000.00 for any towing and storage firm, permitted or unpermitted, licensed or unlicensed, to enter into any agreement with any person in possession of private property to provide automatic or systematic surveillance of such property for purposes of removal and relocation of any such vehicle or trespassing personal property except upon call by such person in possession of such private property to such towing and storage firm for each individual case of trespass; provided, further, that it shall be unlawful and punishable by a fine of $1,000.00 for any towing and storage firm to pay to any private property owner or one in possession of private property any fee or emolument, directly or indirectly, for the right to remove a vehicle or trespassing personal property from said private property.
(a) As used in this Code section, the term “abandoned well or hole” means any manmade opening upon the surface of the earth which is ten feet or more in depth and which has not been used for a period of 60 days. The term does not include ditches; sand or gravel pits; stone, marble, or slate quarries; clay pits; surface mines as defined in Part 3 of Article 2 of Chapter 4 of Title 12, the “Georgia Surface Mining Act of 1968”; or geologic boreholes as defined in Part 3 of Article 3 of Chapter 5 of Title 12, the “Water Well Standards Act of 1985.”
(b) Whenever it is brought to the attention of any person that an open abandoned well or hole, as defined in subsection (a) of this Code section, exists on public or private property, such person shall immediately inform the governing authority of the county in which the hazard exists. The governing authority shall inform the owner or possessor of the land upon which the hazard exists. The governing authority of any such county is authorized to use county work crews, private contractors, or any inmate labor within the county to abate the hazard either by covering, filling, or otherwise. When the hazard exists on private property, the governing authority shall first obtain the permission of the owner or possessor of the property before proceeding with any action in regard to abating the hazard existing on the private property. Upon approval by the owner or possessor of the private property, the governing authority may use county work crews, private contractors, or inmate labor; but in no case shall any work other than making the hazard safe be done on private property.
(c) If the abandoned well or hole is located on private property and the owner or possessor of the property cannot be located or is not known, the governing authority of the county may abate the hazard without the prior approval of the owner or possessor.
(d) The governing authority of the county is authorized to recover the reasonable costs of filling or covering the abandoned well or hole located on private property from the owner or possessor of said property.
(e) The governing authority of the county is authorized to expend county funds to accomplish the purpose of this Code section.
(a) As used in this Code section, the term:
(1) “Geodetic control monuments” means those survey monuments which are established by federal, state, local, and private agencies, the position of which monuments on the earth's surface has been fixed by high-order surveying and computation for use by surveyors and engineers in the extension of geodetic position to property corners, improvements to property, utility systems, streets and highways, and such other objects and things as may be located by surveying. Such monuments may be in the form of metal disks set in concrete, rock, metal, or some other fixed permanent object, the position thereof having been published by the agency which established the monument and made available to the public as well as to land surveyors and engineers for public use.
(2) “Property corner monuments” means those survey monuments which are established to identify property corners, the location and description of which are made a part of any plat or any instrument pertaining to real property filed in the office of the clerk of the superior court of any county of this state. Said survey monuments may be any permanent or semipermanent objects or any live or dead plant material, including, but not limited to, iron or steel pipes, bars, or rods; concrete markers, including highway right of way markers; stone or rock, whether natural or erected; trees, stumps, stakes, and marks, including those marks made on trees, stones, rocks, concrete, or metal; and such other monuments as may be described in said plats and instruments of record.
(b) It shall be unlawful for any person willfully and knowingly to remove, destroy, injure, or displace any geodetic control monument or property corner monument except under the authority of the agency which originally set the monument or, in the case of a property corner monument, under the authority of a registered land surveyor or duly elected or appointed county surveyor having the written permission of all landowners who are parties to said property corner monument. In the case of a geodetic control monument, the record of any authorized change shall be published; and, in the case of a property corner monument, the record of any authorized change shall be filed for record in the office of the clerk of the superior court of the county in which the monument is located.
(c) Any person who violates this Code section shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than $100.00 nor more than $500.00 and may also be punished by imprisonment for not less than 30 days nor more than 60 days.
(a)(1) No cause of action shall arise against an owner of real property, a real estate broker, or any affiliated licensee of the broker for the failure to disclose in any real estate transaction the fact or suspicion that such property:
(A) Is or was occupied by a person who was infected with a virus or any other disease which has been determined by medical evidence as being highly unlikely to be transmitted through the occupancy of a dwelling place presently or previously occupied by such an infected person; or
(B) Was the site of a homicide or other felony or a suicide or a death by accidental or natural causes;
provided, however, an owner, real estate broker, or affiliated licensee of the broker shall, except as provided in paragraph (2) of this subsection, answer truthfully to the best of that person's individual knowledge any question concerning the provisions of subparagraph (A) or (B) of this paragraph.
(2) An owner, real estate broker, or affiliated licensee of the broker shall not be required to answer any question if answering such question or providing such information is prohibited by or constitutes a violation of any federal or state law or rule or regulation, expressly including without limitation the federal Fair Housing Act 1 as now or hereafter amended or the state's fair housing law as set forth in Code Sections 8-3-200 through 8-3-223.
(b) No cause of action shall arise against an owner of real property, real estate broker, or affiliated licensee of the broker for the failure to disclose in any real estate transaction any information or fact which is provided or maintained or is required to be provided or maintained in accordance with Code Section 42-9-44.1. No cause of action shall arise against any real estate broker or affiliated licensee of the broker for revealing information in accordance with this Code section. Violations of this Code section shall not create liability under this Code section against any party absent a finding of fraud on the part of such party.
1 42 U.S.C.A. § 3601 et seq.
(a) Prior to any purchase, lease, or other acquisition of real property or any interest in real property located within any county which has land zoned for agricultural or silvicultural use or identified on an approved county land use plan as agricultural or silvicultural use, it shall be the buyer's or grantee's responsibility to determine whether the subject property is within, partially within, or adjacent to any property zoned or identified on an approved county land use plan as agricultural or silvicultural use. If the grantor, owner, or agent of the owner knows that the property being acquired is within, partially within, or adjacent to any property zoned or identified on an approved county land use plan as agricultural or silvicultural use, the owner or agent for the owner shall deliver to the prospective purchaser, lessee, or grantee a notice which states the following:
“It is the policy of this state and this community to conserve, protect, and encourage the development and improvement of farm and forest land for the production of food, fiber, and other products, and also for its natural and environmental value. This notice is to inform prospective property owners or other persons or entities leasing or acquiring an interest in real property that the property in which they are about to acquire an interest lies within, partially within, or adjacent to an area zoned, used, or identified for farm and forest activities and that farm and forest activities occur in the area. Such farm and forest activities may include intensive operations that cause discomfort and inconveniences that involve, but are not limited to, noises, odors, fumes, dust, smoke, insects, operations of machinery during any 24 hour period, storage and disposal of manure, and the application by spraying or otherwise of chemical fertilizers, soil amendments, herbicides, and pesticides. One or more of these inconveniences may occur as the result of farm or forest activities which are in conformance with existing laws and regulations and accepted customs and standards.”
(b) Noncompliance with any provision of this Code section shall not affect title to real property nor prevent the recording of any document.
(c) This Code section shall not apply to any transaction involving title passing by foreclosure, deed in lieu of foreclosure, tax deed, deed to secure debt, or from an executor or administrator.
(d) This Code section shall not create a cause of action for damages or equitable relief.
Every deed conveying lands shall be recorded in the office of the clerk of the superior court of the county where the land is located. A deed may be recorded at any time; but a prior unrecorded deed loses its priority over a subsequent recorded deed from the same vendor when the purchaser takes such deed without notice of the existence of the prior deed.
(a)(1) The clerk of the superior court shall file, index on a computer program designed for such purpose, and permanently record, in the manner provided constructively in Code Sections 15-6-61 and 15-6-66, the following instruments conveying, transferring, encumbering, or affecting real estate and personal property:
(A) Deeds;
(B) Mortgages;
(C) Liens as provided for by law;
(D) Maps or plats relating to real estate in the county; and
(E) State tax executions and state tax execution renewals as provided for in Article 2 of Chapter 3 of Title 48.
(2) As used in this subsection, the term “liens” shall have the same meaning as described in Code Sections 15-19-14, 44-14-320, and 44-14-602 and shall include all liens provided by state or federal statute.
(3) When indexing liens, the clerk shall index the names of parties in the manner provided by such rules and regulations adopted by the Georgia Superior Court Clerks' Cooperative Authority pursuant to the provisions of Code Section 15-6-61 as authorized by Code Section 15-6-97.
(4) When indexing maps or plats relating to real estate in the county, the clerk of the superior court shall index the names or titles provided in the caption of the plat.
(b) Deeds, mortgages, and liens of all kinds which are required by law to be recorded in the office of the clerk of the superior court and which are against the interests of third parties who have acquired a transfer or lien binding the same property and who are acting in good faith and without notice shall take effect only from the time they are filed for record in the clerk's office.
(c) The clerk of the superior court shall offer electronic filing for the recording of all instruments listed in paragraph (1) of subsection (a) of this Code section.
(d) The clerk of the superior court shall make available a public computer terminal which provides a filer with access to the Georgia Superior Court Clerks' Cooperative Authority's electronic filing portal.
(e) The presence of an incorrect tax parcel identification number, or the absence of a tax parcel identification number, on a recorded instrument shall not:
(1) Void or render voidable such instrument;
(2) Affect the validity, enforceability, or priority of such instrument; or
(3) Affect any notice, constructive or otherwise, provided by the recordation of such instrument.
(f) Nothing in this Code section shall be construed to affect the validity, enforceability, or priority of any deed, mortgage, judgment, or lien of any kind between the parties thereto.
Every unrecorded voluntary deed or conveyance of land made by any person shall be void as against subsequent bona fide purchasers for value without notice of such voluntary deed or conveyance; provided, however, that, if the voluntary deed or conveyance is recorded in accordance with Code Section 44-2-1, it shall have priority over subsequent deeds or conveyances to the described land.
(a) All innocent persons, firms, or corporations acting in good faith and without actual notice which purchase real or personal property for value or obtain contractual liens on the property from distributees, devisees, legatees, or heirs at law holding or apparently holding real or personal property by will or inheritance from a deceased person shall be protected in the purchase of the property or in acquiring such a lien thereon as against unrecorded liens or conveyances created or executed by the deceased person upon or to the property in like manner and to the same extent as if the property had been purchased or the lien acquired from the deceased person.
(b) All innocent persons, firms, or corporations which purchase real or personal property for value or obtain contractual liens on the property from a surviving joint tenant, or surviving joint tenants, holding or apparently holding real or personal property as a surviving joint tenant, or surviving joint tenants, shall be protected in the purchase of the property or in acquiring such a lien thereon as against unrecorded liens or conveyances created or executed by a deceased joint tenant upon or to the property, and as against other unrecorded instruments resulting in a severance of any joint tenant's interest, in like manner and to the same extent as if the property had been purchased or the lien acquired from the deceased joint tenant and surviving joint tenant, or surviving joint tenants.
A purchaser at a sheriff's sale may have the execution under which the property was sold recorded with his or her deed together with all the entries on the execution.
Every bond for title, bond to reconvey realty, contract to sell or convey realty or any interest therein, and any and all transfers or assignments of realty shall be filed and recorded in the office of the clerk of the superior court of the county where the land referred to in the instrument is located. The filing and recording shall, from the date of filing, be notice of the interest and equity of the holder of the instrument in the property described therein. The filing and recording may be made at any time; but such bond for title, bond to reconvey realty, contract to sell or convey realty or any interest therein, and any transfer or assignment of realty shall lose its priority over deeds, loan deeds, mortgages, bonds for titles, bonds to reconvey realty, contracts to sell or convey realty or any interest therein and any transfer or assignment of realty from the same vendor, obligor, transferor, or assignor which is executed subsequently but filed for record first and is taken without notice of the former instrument.
When any bond for title has been recorded and is subsequently surrendered or satisfied, such surrender or satisfaction may be entered of record by the clerk of the superior court in the same manner that cancellations of mortgages and deeds to secure debts are entered of record.
When executed with the formality prescribed for the execution of deeds to land, options to purchase land or any interest in land and assignments of such options to purchase may be recorded in the county in which the property described in the instrument is located. The record shall, from the date of filing, be notice of the interest and rights of the parties to the option to purchase in and with respect to the property described in the option to purchase and of the interest and rights of any person holding an assignment of the option to purchase.
When executed with the formality prescribed for the execution of deeds to land, leases or usufructs of land or of any interest in land and assignments of such leases or usufructs for any purpose, including the purpose of securing debt, may be recorded in the county where the property described in the instrument is located. The record shall, from the date of filing, be notice of the interest of the parties to the lease or usufructs in the property described in the instrument and of the interest of any person holding an assignment of any interest in such lease or usufruct.
Absolute deeds and bills of sale to personalty may be recorded in the office of the clerk of the superior court of the county where the maker resides. Such record, being permissive and not compulsory, is not constructive or implied notice to anyone. This Code section shall not apply to transactions covered by Article 9 of Title 11.
A copy from the registry of any instrument conveying or affecting land in any county of this state which is recorded in the office of the clerk of the superior court of the county, if duly certified by the clerk, may be filed for record and recorded in the office of the clerk of the superior court of any other county where some of the land conveyed or affected by such instrument is located in the same manner and with the same force and effect for all purposes as if the certified copy were the original instrument, provided an affidavit is attached to the certified copy and recorded with it in which the affiant says that he owns an interest in property affected by the instrument, that the original instrument has been lost or destroyed, and that he truly believes that the original instrument was genuine.
When the record of any deed or other recorded instrument or the certificate of record is lost or destroyed, the clerk of the superior court may rerecord the instrument and the certificate of record. The rerecording shall be as valid as the original recording and shall take effect from the date of the original recording, provided the rerecording is within 12 months after the loss or destruction of the original recording.
(a) When the creation of a new county or a change in county lines causes land to be included in a different county than that in which it was situated at the time of the recording of a deed, mortgage, or other lien therein, any holder of such a deed, mortgage, or other lien may have such instrument rerecorded in the office of the clerk of the superior court of the county in which the land is newly situated. If the original of such deed, mortgage, or other lien is lost, a certified copy thereof from the record where the same was recorded may in like manner be rerecorded in the county in which the land affected is newly situated. Upon payment of the recording fees, it shall be the duty of the clerk of the superior court of the county where the instrument is rerecorded to cause the deed, mortgage, or other lien to be entered upon the proper records for such papers; and the clerk shall note on the record book the date of the original recording and the book and page or pages upon which the deed or mortgage or other lien was originally recorded.
(b) The rerecording of a deed, mortgage, or other lien pursuant to subsection (a) of this Code section shall not affect the validity of the original record as notice.
(a) Except for documents electronically filed as provided for in Chapter 12 of Title 10, and in other Code sections in this part, before any deed to realty or personalty or any mortgage, bond for title, or other recordable instrument executed in this state may be recorded, it shall be an original instrument and shall be attested or acknowledged as provided by law. However, nothing in this Code section shall dispense with another witness where an additional witness is required. This Code section shall not apply to transactions covered by Article 9 of Title 11.
(b) No affidavit prepared under Code Section 44-2-20 and no instrument by which the title to real property or any interest therein is conveyed, created, assigned, encumbered, disposed of, or otherwise affected shall be entitled to recordation unless the name and mailing address of the natural person to whom the affidavit or instrument is to be returned is legibly printed, typewritten, or stamped upon such affidavit or instrument at the top of the first page thereof.
(c) If an instrument or affidavit is titled or recorded without compliance with subsection (b) of this Code section, such noncompliance does not alone impair the validity of the filing of recordation or of the constructive notice imparted by filing or recordation.
(d) Subsection (b) of this Code section does not apply to the following:
(1) An affidavit or instrument executed before July 1, 1994;
(2) A decree, order, judgment, or writ of any court;
(3) A will; or
(4) Any plat.
Any of the instruments enumerated in Code Section 44-2-14 may be attested by a judge of a court of record, including a judge of a municipal court, or by a magistrate, a notary public, or a clerk or deputy clerk of a superior court or of a city court created by special Act of the General Assembly. With the exception of notaries public and judges of courts of record, such officers may attest such instruments only in the county in which they respectively hold their offices.
If subsequent to its execution a recordable instrument is acknowledged in the presence of any of the officers referred to in Code Section 44-2-15, that fact, certified on the deed by such officer, shall entitle it to be recorded.
(a) As used in this Code section, the term “state” means any one of the states of the United States and any territories and possessions of the United States, including the District of Columbia, Puerto Rico, and the Virgin Islands.
(b) Wherever a deed, mortgage, bond for title, or other recordable instrument appears by its caption to have been executed in one state or county and the official attesting witness appears to be an officer of a different state or of another county, which official would not have jurisdiction to witness instruments in the state or county named in the caption, the instrument, notwithstanding its caption, shall be conclusively considered and construed to have been attested by the officer in the state or county in which he has authority to act. Such deed, mortgage, bond for title, or other recordable instrument so witnessed shall be entitled to be recorded if in other respects it is so entitled.
If a deed is not attested by one of the officers named in Code Section 44-2-15, it may be recorded upon the affidavit of a subscribing witness, which affidavit shall be made before any one of the officers named in Code Section 44-2-15 and shall testify to the execution of the deed and its attestation according to law. A substantial compliance with the requirements of this Code section shall be held sufficient in the absence of all suspicion of fraud.
If the subscribing witness or witnesses are dead, are insane, have moved outside the state, or are otherwise incapacitated to make the affidavit provided for in Code Section 44-2-18, the affidavit of a third person testifying to the execution of the deed and to the genuineness of the handwriting of the subscribing witness or witnesses shall be sufficient to admit the deed to record.
(a) Recorded affidavits shall be notice of the facts therein recited, whether taken at the time of a conveyance of land or not, where such affidavits show:
(1) The relationship of parties or other persons to conveyances of land;
(2) The relationship of any parties to any conveyance with other parties whose names are shown in the chain of title to lands;
(3) The age or ages of any person or persons connected with the chain of title;
(4) Whether the land embraced in any conveyance or any part of such land or right therein has been in the actual possession of any party or parties connected with the chain of title;
(5) The payment of debts of an unadministered estate;
(6) The fact or date of death of any person connected with such title;
(7) Where such affidavits relate to the identity of parties whose names may be shown differently in chains of title;
(8) Where such affidavits show the ownership or adverse possession of lands or that other persons have not owned such lands nor been in possession of same; or
(9) Where such affidavits state any other fact or circumstance affecting title to land or any right, title, interest in, or lien or encumbrance upon land.
Any such affidavits may be made by any person, whether connected with the chain of title or not.
(b) Reserved.
(c) Affidavits referred to in subsection (a) of this Code section shall be filed by the clerk of the superior court of the county where the land is located and shall contain a caption referring to the current owner and to a deed or other recorded instrument in the chain of title of the affected land. The clerk of the superior court shall record such affidavits, shall enter on the deed or other recorded instrument so referred to the book and page number on which such affidavit may be recorded, and shall index same in the name of the purported owner as shown by such caption in both grantor and grantee indexes in deed records as conveyances of lands are recorded and indexed; and the clerk shall receive the same compensation therefor as for recording deeds to lands.
(a) To authorize the recording of a deed to realty or personalty executed outside this state, the deed must be attested by or acknowledged before:
(1) A consul or vice-consul of the United States, whose certificate under his official seal shall be evidence of the fact;
(2) A judge of a court of record in the state or county where executed, with a certificate of the clerk under the seal of such court of the genuineness of the signature of such judge;
(3) A clerk of a court of record under the seal of the court; or
(4) A notary public or justice of the peace of the county or city of the state or the state and the county, city, or country where executed, with his seal of office attached; if such notary public or justice of the peace has no seal, then his official character shall be certified by a clerk of any court of record in the county, city, or country of the residence of such notary or justice of the peace.
(b) A deed to realty must be attested by two witnesses, one of whom may be one of the officials named in subsection (a) of this Code section.
(c) Wherever any deed to realty or personalty executed outside this state appears by its caption to have been executed in one state and county and the official attesting witness appears to be an official of another state or county, which official would not have jurisdiction to witness such deed in the state and county named in the caption, the deed, notwithstanding the caption, shall be conclusively considered and construed to have been attested by the officer in the state and county in which he had authority to act.
(d) This Code section shall not apply to transactions covered by Article 9 of Title 11.
A prima-facie case shall be made out in actions respecting title to land upon showing good record title for a period of 40 years, and it shall not be necessary under such circumstances to prove title to the original grant from the state.
Where an affidavit of forgery has been filed to the plaintiff's deed, and the deed has been turned over to the defendant or his counsel in order to procure evidence upon the issue of forgery, and such deed is destroyed or lost by the defendant or his counsel or for any cause is not returned to the plaintiff, the judge trying the case shall strike the affidavit of forgery and withdraw the issue from the jury until the deed is produced. The same rule shall apply when the plaintiff files an affidavit of forgery as to the deed of the defendant.
All decrees, deeds, mortgages, or other instruments affecting the title to land shall be recorded by the clerk of superior court in such a manner so as to provide a permanent record of such instruments. It shall be lawful to make a copy or copies of any plats, blueprints, or other copies of plats that are already of record in the clerk's office. These copies shall serve all purposes and shall be as authentic as the originals.
The owner of real property or of any interest therein or any holder of a lien thereon may file a plat of the property in the office of the clerk of superior court of the county in which the property or any part thereof is located. It shall be the duty of the clerk to record and index any plat that conforms with Code Section 15-6-67.
When any plat is filed by the clerk of superior court, such filing shall be deemed a recording of the plat.
When any deed, mortgage, or other instrument conveying an interest in or creating a lien on real property refers to the boundaries, metes, courses, or distances of the real estate delineated or shown on any plat of the property or on any blueprint, tracing, photostatic or digital copy, or other copy of the plat which has been recorded as authorized in Code Section 44-2-26 and when the deed, mortgage, or other instrument states the office, book, and page of recordation of the plat or of the blueprint, tracing, photostatic or digital copy, or other copy of the plat, the reference shall be equivalent to setting forth in the deed, mortgage, or other instrument the boundaries, metes, courses, or distances of the real estate as may be delineated or shown on the plat or on the blueprint, tracing, photostatic or digital copy, or other copy thereof.
Any plats or any blueprints, tracings, photostatic copies, or other copies of plats recorded prior to March 29, 1937, in the manner described in Code Section 44-2-26 are declared to have been duly recorded; and the reference in any deed, mortgage, or other instrument executed prior to March 29, 1937, to the boundaries, metes, courses, or distances of the real estate delineated or shown on any plat or on any blueprint, tracing, photostatic copy, or other copy of a plat recorded prior to March 29, 1937, in the manner described in Code Section 44-2-26 shall have the same effect as if the boundaries, metes, courses, or distances of the real estate were specifically set forth in the deed, mortgage, or other instrument.
(a) Any party, or his or her legal representative, to a settlement which will convey legal or equitable title to real estate or any interest therein or create any lien thereon by way of a deed to secure debt, mortgage, or other instrument may file an instrument to be designated a “notice of settlement” with the clerk of the superior court of the county in which the real estate is situated. The notice of settlement shall be filed, permanently recorded, and indexed by the clerk of the superior court in the same manner as real estate records of the county. The clerk of the superior court shall transmit such information regarding notices of settlement as required by the Georgia Superior Court Clerks' Cooperative Authority for inclusion in the state-wide uniform automated information system for real and personal property records, as provided for by Code Sections 15-6-97 and 15-6-98. The clerk of the superior court shall charge a fee for the filing and recording of the notice of settlement as is required for filing other instruments pertaining to real estate as set forth in division (f)(1)(A)(i) of Code Section 15-6-77.
(b) The notice of settlement provided for in subsection (a) of this Code section shall be signed by said party or legal representative and shall set forth the names of the parties to the settlement and a description of the real estate. If the notice is executed by any one other than an attorney at law of this state, the execution shall be acknowledged or proved in the manner provided by law for the acknowledgment or proof of deeds.
(c) After the filing of a notice of settlement, any person claiming title to, an interest in, or a lien upon the real estate described in the notice through any party in the notice shall be deemed to have acquired said title, interest, or lien with knowledge of the anticipated settlement and shall be subject to the terms, conditions, and provisions of the deed or mortgage between the parties filed within the period provided by subsection (e) of this Code section.
(d) The form of the notice of settlement shall be substantially as follows:
“ NOTICE OF REAL ESTATE SETTLEMENT
This form must be executed by a party or legal representative. If the notice is executed by anyone other than an attorney at law in Georgia, it must be executed and acknowledged or proved in the same manner as a deed.
| | ) | | | --- | --- | --- | | Name(s) and address(es) | ) | | | | ) | | | ______________________________ | ) | | | | ) | | | ______________________________ | ) | | | | ) | | | ______________________________ | ) | | | | ) | | | ______________________________ | ) | | | | ) | | | Seller(s) | ) | | | | ) | | | -and- | ) | | | | ) | | | Name(s) and address(es) | ) | | | | ) | | | ______________________________ | ) | | | | ) | | | ______________________________ | ) | Notice | | | ) | | | ______________________________ | ) | of | | | ) | | | ______________________________ | ) | Settlement | | | ) | | | Buyer(s) | ) | | | | ) | | | -and- | ) | | | | ) | | | Name(s) and address(es) | ) | | | | ) | | | ______________________________ | ) | | | | ) | | | ______________________________ | ) | | | | ) | | | ______________________________ | ) | | | | ) | | | ______________________________ | ) | | | | ) | | | Mortgagee(s) | ) | | | | ) | |
NOTICE is hereby given of a contract, agreement, and mortgage and commitment between the parties hereto.
The lands to be affected are described as follows:
All that certain tract or parcel of lands and premises situate lying and being in the __________ of __________, County of __________ and State of Georgia, commonly known as __________ and more particularly described as follows:
Tax map reference
County of __________ Block No.___ Lot No.___ Block ___
Prepared by:
Name
Address
Telephone Number”
(e) The notice of settlement shall be effective for 30 days from the date of filing; provided, however, that the notice of settlement shall be allowed to be renewed by a second filing for one additional 30 day period. Any lien filed during said 30 days shall attach to the premises described in the notice immediately upon the expiration of the 30 days, provided that the premises have not been conveyed and notwithstanding the filing of a subsequent notice of settlement.
This part shall be known and may be cited as the “Uniform Real Property Electronic Recording Act.”
As used in this part, the term:
(1) “Authority” means the Georgia Superior Court Clerks' Cooperative Authority established pursuant to Code Section 15-6-94.
(2) “Document” means information that is:
(A) Inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; and
(B) Eligible to be recorded in the land records maintained by the clerk of superior court.
(3) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(4) “Electronic document” means a document that is received by the clerk of superior court in an electronic form.
(5) “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document.
(6) “Paper document” means a document that is received by the clerk of superior court that is not electronic.
(7) “Person” means an individual, corporation, business trust, estate, trust partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(8) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(a) An electronic document prepared and filed in compliance with this part shall satisfy any requirement as a condition for recording that a document be an original, on paper or another tangible medium, or in writing.
(b) An electronic signature shall satisfy any requirement as a condition for recording that a document be signed.
(c) A requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to perform that act, and all other information required to be included by other applicable law, is attached to or logically associated with the document or signature. A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature.
A clerk of superior court:
(1) Who implements any of the functions listed in this Code section shall do so in compliance with standards established by the authority;
(2) May receive, index, store, archive, and transmit electronic documents;
(3) May provide for access to, and search and retrieval of, documents and information by electronic means;
(4) Who accepts electronic documents for recording shall continue to accept for filing paper documents as authorized by state law and shall record both electronic documents and paper documents in the same manner as provided for by law;
(5) For archival purposes, may convert into electronic form paper documents accepted for recording;
(6) May convert into electronic form historical documents recorded on paper;
(7) May accept electronically any fee or other moneys that the clerk of superior court is authorized to collect; and
(8) May agree with other officials of a state or a political subdivision thereof, or of the United States, on procedures or processes to electronically facilitate satisfaction of prior approvals and conditions precedent to recording and on the electronic payment of statutorily required fees and other moneys.
(a) The authority shall adopt rules and regulations and any standardized forms necessary to implement this part.
(b) To promote uniform standards and practices and compatibility of technology used within offices of clerks of superior court in this state and recording offices in other states that have enacted or may enact provisions substantially similar to those contained within this part, the authority shall consider when adopting, amending, and repealing its rules and regulations and any standardized forms:
(1) Standards and practices of other jurisdictions;
(2) The most recent standards promulgated by national standard-setting bodies, such as the Property Records Industry Association;
(3) The views of interested persons and governmental officials and entities;
(4) The needs of counties of varying size, population, and resources; and
(5) Standards that ensure that electronic documents are accurate, authentic, adequately preserved, and resistant to tampering.
In applying and construing this part, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact substantially similar provisions.
The provisions of this part modify, limit, and supersede the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but shall not modify, limit, or supersede Section 101(c) of that federal act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that federal act, 15 U.S.C. Section 7003(b).
This article shall be known and may be cited as “The Land Registration Law.”
As used in this article, the term:
(1) “Clerk” means the clerk of the superior court of the county where the land is located and includes his lawful deputies and any person lawfully acting as clerk under the general laws or under this article.
(2) “Court” means the superior court of the county where the land is located.
(3) “Involuntary transaction” means all transmissions of registered land or of any interest therein other than those included in paragraph (6) of this Code section and all other rights or claims, judicial proceedings, liens, charges, or encumbrances not created directly by contract with the registered owner but arising by operation of law or of equitable principles or because of dower, the exercise of the right of eminent domain, levies on delinquent taxes, or any other like matters affecting registered land or any interest therein.
(4) “Judge,” “judge of the court,” “judge of the superior court,” “judge of the superior court of the county where the land is located” or words of similar purport mean any judge presiding in the superior court of the county where the land is located. While it is intended that as a usual matter the judge of the superior court of each circuit shall be the judge who shall act upon and sit in the various matters arising in that circuit with which the judges of such courts are charged under this article, as to such matters any judge of the superior court shall have jurisdiction to perform the functions of judge under this article. In the event the judge of the superior court of the circuit in which the transaction or matter arises is disqualified, absent from the circuit, ill, dead, or from any other cause cannot act in the matter, it shall be the duty of any other judge of the superior court to whom the matter is presented to act in the matter to the same extent as if the same arose in one of the counties of his own circuit. In any matter arising under this article, upon the request of the judge of the superior court of the circuit in which it arose, any judge of the superior court may act upon it as if it had arisen in his own circuit.
(5) “Registered land” means any estate or interest in land which shall have been registered under this article.
(6) “Voluntary transaction” means all contractual and other voluntary acts or dealings, except by will, by any registered owner of any estate or interest in land, with reference to such estate or interest and any right of homestead or exemption therein.
The duties required of the clerk and the sheriff by this article may be performed through their lawful deputies; but the clerk or the sheriff, as the case may be, shall be responsible for the acts of such deputies.
Any person who: (1) fraudulently obtains or attempts to obtain a decree of registration of title to any land or interest therein; (2) knowingly offers in evidence any forged or fraudulent document in the course of any proceedings with regard to registered lands or any interest therein; (3) makes or utters any forged instrument of transfer or instrument of mortgage or any other paper, writing, or document used in connection with any of the proceedings required for the registration of lands or the notation of entries upon the register of titles; (4) steals or fraudulently conceals any owner's certificate, creditor's certificate, or other certificate of title provided for under this article; (5) fraudulently alters, changes, or mutilates any writing, instrument, document, record, registration, or register provided for under this article; (6) makes any false oath or affidavit with respect to any matter or thing provided for in this article; or (7) makes or knowingly uses any counterfeit of any certificate provided for by this article shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than ten years.
Any clerk, deputy clerk, special clerk, or other person performing the duties of the office of clerk who: (1) fraudulently enters a decree of registration without authority of the court; (2) fraudulently registers any title; (3) fraudulently makes any notation or entry upon the title register; (4) fraudulently issues any certificate of title, creditor's certificate, or other instrument provided for by this article; or (5) knowingly, intentionally, and fraudulently does any act of omission or commission under color of his office in relation to the matters provided for by this article shall be guilty of a felony and shall be removed from office and be permanently disqualified from holding any public office and shall be punished by imprisonment for not less than one nor more than ten years.
Any sheriff, deputy sheriff, or other person performing the duties of the office of sheriff who knowingly and fraudulently makes any false entry or return in connection with any matter arising under this article or who fraudulently conspires with any person or persons to defraud any other person or persons through this article shall be guilty of a felony and shall be removed from office and be permanently disqualified from holding any public office in this state and shall be punished by imprisonment for not less than one nor more than ten years.
Any examiner of title who knowingly and fraudulently makes any false report to the court as to any matter relating to any title which is sought to be registered under this article, as to any matter affecting the same, or as to any other matter referred to him under this article or who fraudulently conspires with any other person or persons to use this article in defrauding any other person or persons, firm, or corporation or who is guilty of any willful malpractice in his office shall be guilty of a felony and be punished by imprisonment for not less than one nor more than ten years.
The felonies provided for in this article may, in the matter of punishment, be reduced to misdemeanors in the manner prescribed in Code Section 17-10-5.
For the purpose of enabling all persons owning real estate within this state to have the title thereto settled and registered as prescribed by this article, the superior court of the county in which the land is located shall have exclusive original jurisdiction of all petitions and proceedings had thereupon.
The proceedings under any petition for the registration of land and all proceedings in the court in relation to registered land shall be proceedings in rem against the land; and the decree of the court shall operate directly on the land and shall vest and establish title thereto in accordance with this article upon all persons who are parties to said proceedings, whether by name or under the general designation of “whom it may concern.”
Action for registration of title shall be begun by a petition to the court by the person, persons, or corporation claiming, singly or collectively, to own or to have the power of appointing or disposing of an estate in fee simple in any land whether or not subject to liens, encumbrances, or lesser estate. Minors and other persons under disability may bring and defend actions by a guardian, a guardian ad litem, a next friend, or a trustee, as the case may be.
Any person possessing lands and claiming an interest or estate less than the fee therein may have his title to such lands established under this article without the registration and transfer features provided in this article.
The petition and amendments thereto shall be signed and sworn to by each petitioner, or, in the case of a corporation, by some officer thereof, or, in the case of a person under disability, by the person filing the petition. It shall contain a full description of the land, its valuation, and its last assessment for county taxation; shall show when, how, and from whom it was acquired, a description of the title by which he claims the land, and an abstract of title; shall state whether or not it is occupied; and shall give an account of all known liens, interests, and claims, adverse or otherwise, vested or contingent. Full names and addresses, if known, of all persons who may have any interest in the land, including adjoining owners and occupants, shall be given. The description of the land given in the petition shall be in terms which will identify the same fully and which will tend to describe the same as permanently as is reasonably practicable under all the circumstances. If the land is in a portion of the state in which land is divided into land districts and lot numbers by state survey, the petition shall state the number of the land district and the lot number or numbers in which the tract is located. Before passing a decree upon any petition for registration, the judge, on his own motion or upon the recommendation of the examiner, may require a fuller and more adequate description or one tending more permanently to identify the tract in question to be included in the petition by amendment; and if, in the discretion of the court, it shall be necessary, the judge may for that purpose require a survey of the premises to be made and the boundaries marked by permanent monuments. The acreage or other superficial contents of the tract shall be stated with approximate accuracy; and where reasonably practicable the court may require the metes and bounds to be stated.
Any number of separate parcels of land which are claimed by the petitioner under the same general claim of title and are located in the same county may be included in the same proceeding. Any one tract may be established in several parts, each of which shall be clearly and accurately described and registered separately.
The petition shall include as defendants all persons whom it shows to have any interest, equity, or claim upon said land or upon any interest in the land whether such claim is vested or contingent and whether or not the claim is adverse to the petitioner; and the petition shall also include as defendants all other persons “whom it may concern.”
(a)(1) Upon the petition being filed in the office of the clerk of the superior court in the county where the land is located, the clerk shall issue a process directed to the sheriffs of this state and their lawful deputies requiring all of the defendants named in the petition and all other persons “whom it may concern” to show cause before the court on a named day not less than 40 nor more than 50 days from the date thereof why the prayers of the petition should not be granted and why the court should not proceed to judgment in such cause. The clerk shall make the necessary copies of the petition and process for service.
(2) A copy of the petition and process shall be served in accordance with Code Section 9-11-4 upon each party who is named as a defendant in the original petition and who is a resident of this state, provided that such service shall be within 30 days from the time of issuance of process. Second originals and copies may be issued and served in the same manner provided for in Code Section 9-11-4.
(3) The clerk of the superior court shall also cause to be published for four separate weeks in the newspaper in which the advertisements of sheriff's sales in the county are advertised a notice addressed “to whom it may concern” and to each person named in the petition as a defendant who resides outside of the state or whose place of residence is unknown. The notice shall give notice of the filing of the petition by the petitioner and a description of the land which the petitioner seeks to register and shall warn such defendants to show cause why the petition should not be granted before the court on the date named in the process.
(4) Wherever the petition discloses or it otherwise becomes disclosed to the court in the progress of the proceedings that any nonresident is interested, such nonresident shall also be notified by the clerk of the court mailing to him a copy of the petition and process by registered or certified mail or statutory overnight delivery to his post office address, if known, as the same may be disclosed to the court through the petition or other proceedings in the case.
(5) The judge of the court may grant additional time for service or return of the process and may provide for service in cases not provided for in this subsection wherever the exigencies of justice may so require.
(b) Notwithstanding subsection (a) of this Code section, instead of the clerk's issuing process and making copies of the petition and process and instead of service of the petition and process being made, it shall be sufficient for the clerk to prepare and cause to be issued and served as provided in subsection (a) of this Code section a summons substantially in the following language:
“To (here list the defendants shown in the petition):
Please take notice that (here name the plaintiff or plaintiffs) has filed in said court a petition seeking to register, under the provisions of the Land Registration Law, the following described lands (describe them). You are notified to show cause to the contrary, if any you have, before said court on or before the _____ day of _____, _____.
| | ________________________________________ | | --- | --- | | | Clerk” |
However, if the petitioner so requests and if he delivers copies of the petition to the clerk, the clerk shall attach a copy of the process to the petition and cause the same to be served as provided in subsection (a) of this Code section. Wherever in this article a requirement is made for serving on any person a copy of the petition and process, it shall be sufficient in lieu thereof to serve a copy of the summons as provided for in this subsection.
(c) Notwithstanding subsection (b) of this Code section, if any defendant named in the original petition shall through his counsel request in writing a copy of the petition from the applicant, the applicant shall provide the defendant with a copy of the petition, with all exhibits attached, within five days of the request. The time within which a defendant must file an answer or cross-action to the application shall be suspended from the date of his request for a copy of the petition until the date he receives the copy of the petition, with all exhibits attached, from the applicant.
(d) Guardians ad litem shall be appointed for infants and other persons under disability in proceedings under this article, as provided for in Title 9.
A nonresident petitioner shall appoint a resident agent or attorney upon whom process and notice may be served.
If the petition discloses that it involves the determination of any public right or interest of this state or of any county or municipality thereof, the process or notice, in order to affect the state, the county, or the municipality, shall be served:
(1) In the case of the state, upon the Attorney General;
(2) In the case of a county, upon the judge of the probate court or, if the judge of the probate court is disqualified, upon the clerk of the superior court; or
(3) In the case of a municipality, upon the mayor of the municipality or, if there is no mayor or if the mayor is disqualified, upon a majority of the members of the council or other governing body of the municipality.
Any person entitled to notice or service of process under this article may waive such notice or service by a written acknowledgment of service or written waiver of service entered upon the petition or entitled in the cause and signed by such person in the presence of the judge of the superior court, the clerk of the superior court of the county, the examiner, or any other person or official authorized by law to administer oaths, to take acknowledgments, or to act as a notary public or official witness. His signature shall be attested by such officer.
Before passing the decree authorizing the registration of land, the court shall be satisfied that the publication of notice and service of process required by this article have been made. After judgment, the entry of service by the sheriff or his deputy shall be conclusive evidence and shall not be subject to traverse nor shall any acknowledgment of service be subject to traverse. The recital of the service of process and of the giving and publishing of notices contained in the decree or final judgment in the case shall be conclusive evidence that such service, publication, and notice have been legally given; provided, however, that nothing in this Code section shall prevent any aggrieved person from having a right of action against any sheriff who shall make a false return of service, or against any clerk or examiner who shall falsely attest a waiver or acknowledgment of service, or against any clerk who shall fail to publish the notice or to mail the notice required by this article.
(a) A notice similar to the notice published as provided in Code Section 44-2-67 shall be delivered by the clerk to the sheriff of the county or to one of his lawful deputies; and the sheriff or his lawful deputy shall, within 30 days from the date the petition is filed, post the same upon the land in some conspicuous place. If there is more than one tract of land, the clerk shall furnish enough notices to the sheriff or his deputy to allow the posting of a notice upon each tract of land included in the petition.
(b) If the land contains one or more dwelling houses or one or more buildings used as a place of business, the sheriff shall conspicuously post upon each house or building the notice provided for in subsection (a) of this Code section; and he shall state this in his return to the court.
(c) Within 30 days from the date the petition is filed, the sheriff shall go upon the land and ascertain the identities of the occupants of the land. He shall make an official return to the court stating the name and post office address of each person over 14 years of age actually occupying the premises.
(d) After receiving the sheriff's return, the clerk shall send a copy of the petition and process by registered or certified mail or statutory overnight delivery to each person occupying the land or he may require the sheriff or his deputy to serve a copy of the petition and process upon such persons. The clerk shall make an entry if he has mailed the notices or, if the sheriff has made the service of process, the sheriff shall make the return.
(e) After the sheriff or his deputy has entered upon the land, posted the notices provided for in subsections (a) and (b) of this Code section, and made his return to the court as provided in subsection (c) of this Code section, the land shall be deemed to have been seized and brought into the custody of the court for the purposes of this article; and the court's jurisdiction in rem and quasi in rem shall attach thereto for purposes of land registration proceedings under this article.
(f) The clerk shall attach to each owner's certificate of title a certified copy of the sheriff's return.
The notices provided for and to be given under this article shall stand as personal service of process and shall be conclusive and binding on all persons so notified and on all the world. Appearances or pleadings in the case shall constitute a waiver of process and service and of notice and of any defect therein.
If the report of the examiner discloses that persons other than those who have been notified are entitled to notice, a copy of the petition shall be served upon such persons in the same manner as other persons named as defendants in the petition are required to be served by this article; and, in addition to the copy of the petition, there shall be attached a notice from the clerk directed to such person informing him that he shall appear and show cause against the judgment being rendered in the case, if any, within ten days from the date of the service of the notice. However, nothing in this Code section shall be construed to require the giving of additional notice by publication other than the published notice provided for in this article to nonresidents or persons who, by reason of absence from the state or by reason of their whereabouts being unknown, cannot be found and served with process.
Wherever notice is required by this article and no provision is made as to how notice shall be given or wherever, in the discretion of the judge, additional notice to that provided for in this article should be given to any particular person or persons or to the public generally, the judge may order such notice to be given and may provide the manner in which it shall be given.
Any person, whether notified or not, may become a party to the proceeding for the purpose of filing objections to the granting of the relief prayed for in the petition or any part thereof either by filing in court an answer showing that he claims some interest in the premises and stating the grounds of his objection or by filing a cross-action praying that the title to the land or some interest therein be decreed to be in him and be registered accordingly.
While the cause is pending before the examiner of titles or at any time before final decree, the judge, or the examiner with the approval of the judge, may require the land to be surveyed by some competent surveyor and may order durable bounds to be set and a plat thereof to be filed among the papers of the suit. Before such survey is made, all adjoining landowners shall be given at least five days' notice. The petitioner or any adjoining owner dissatisfied with the survey may file a protest with the court within ten days from the time the plat is filed; and thereupon an issue shall be made up and tried as in case of protest to the return of land processioners.
If the petitioner's title is not and cannot be made proper for registration, the petition may, at the discretion of the court or the petitioner, be dismissed without prejudice on terms to be determined by the court.
Amendments to petitions or other pleadings, including joinder, substitution, or discontinuance of parties, the severance of pleadings, and the omission or severance of any portion or parcel of the land may be ordered or allowed by the court at any time before the final decree upon terms that may be just and reasonable. The court may require facts to be stated in the petition in addition to those prescribed by this article. The examiner shall have the same powers subject to review by exception to his reports.
Pending registration, the land described in any petition may be dealt with as if no petition had been filed; but any person who shall acquire any interest in or claim against any such land shall at once appear as a petitioner or answer as a party defendant in the pleadings for registration, and such interest or claim shall be subject to the decree of the court.
No decree shall be rendered by default and without the necessary facts being shown.
After the record has been perfected and settled, the judge of the superior court shall proceed to decide the case; and if, upon consideration of such record, the title shall be found in the petitioner, the judge shall enter a decree to that effect ascertaining all limitations, liens, encumbrances, and the like and declaring the land entitled to registration according to his findings. Such decree shall be entered upon the minutes of the superior court and shall become a part of the records thereof. If, upon consideration of the record, the judge finds that the petitioner is not entitled to a decree declaring the land entitled to registration, he shall enter judgment accordingly. If any person shall have filed a cross-action praying for the title to be found in him, the judge may enter a decree to that effect in like manner ascertaining and declaring all limitations, liens, and the like and declaring the land entitled to registration according to his findings. If separate parcels shall be involved, the court shall render a separate decree as to each parcel; and the same shall be done where the petitioner has divided a tract into separately described parcels and has accurately described each parcel for separate registration.
Every decree rendered as provided in this article shall bind the land and bar all persons claiming title thereto or interest therein, shall quiet the title thereto, and shall be forever binding and conclusive upon and against all persons, including this state, whether mentioned by name in the order of publication or included under the general description “whom it may concern.” It shall not be an exception to the conclusiveness of the decree that the person is a minor, is incompetent by reason of mental illness or intellectual disability, or is under any other disability; but said person may have an action against the assurance fund provided for in Part 6 of this article.
All judgments and decrees of the superior court or the judge thereof which are rendered under this article shall be subject to review by the Court of Appeals.
The judge of the superior court of each judicial circuit shall appoint at least one auditor, who shall be known as the examiner, who shall discharge the duties provided for the examiner in this article but whose relation and accountability to the court shall be that of an auditor in the general practice existing in this state. The judge shall appoint as many examiners in the circuit as the public convenience may require in connection with the carrying out of this article; and the judge may, in any case, appoint a special examiner. Examiners shall hold office at the pleasure of the judge and shall be removable at any time with or without cause. Each examiner must be a competent attorney at law, be of good standing in his profession, and have at least three years' experience in the practice of law. Each examiner shall take and file in the office of the clerk of the superior court of the county of his residence, along with the order of his appointment, an oath or affidavit substantially in the form prescribed in Code Section 44-2-228.
Upon the filing of a petition as provided in this article, the clerk shall at once notify the judge who shall refer the action to one of the general examiners or to a special examiner. It shall then become the duty of the examiner to make up a preliminary report containing an abstract of the title to the land from public records and all other evidence of a trustworthy nature that can reasonably be obtained by the examiner, which abstract shall contain:
(1) Extracts from the records and other matters referred to therein which are complete enough to enable the court to decide the questions involved;
(2) A statement of the facts relating to the possession of the lands; and
(3) The names and addresses, so far as the examiner is able to ascertain, of all persons interested in the land as well as all adjoining owners showing their several apparent or possible interests and indicating upon whom and in what manner process should be served or notices given in accordance with this article.
The preliminary report of the examiner shall be filed in the office of the clerk of the superior court on or before the return day of the court as stated in the process unless the time for filing the report is extended by the court.
As soon as practicable after the return day stated in the process, the examiner shall proceed to hear evidence and make up his final report to the court. However, if it has developed from the preliminary report filed by him that persons other than those named as defendants in the original petition are entitled to service or notice, the hearing shall not begin until after ten days from the date of the service of notice upon such persons. The examiner shall give notice of the time and place of the hearing to the petitioner and to persons who have filed any pleading in the case.
(a) At the time and place set for the hearing, the examiner shall, in like manner as other auditors, proceed with similar powers as to the compelling of the attendance of witnesses, the production of books and papers, and adjournment and recessing to hear all lawful evidence submitted. In addition he may make such independent examination of the title as he may deem necessary.
(b) Within 15 days after the hearing has been concluded unless for good cause the time is extended by the judge, the examiner shall file with the clerk a report of his conclusions of law and of fact setting forth the state of the title; any liens or encumbrances thereon, by whom held, and the amounts due thereon; the abstract of title to the land; any other information affecting the validity of the title; and a brief or a stenographic report of the evidence taken by him. He shall mail notice of the filing of his report to each of the parties who have appeared in the case. Any of the parties to the proceeding may file exceptions to the conclusions of law or of fact or to the general findings of the examiner within 20 days after such report is filed. The clerk shall thereupon notify the judge that the record is ready for his determination.
(c) If the petitioner or any contestant of the petitioner's right shall demand a trial by jury upon any issue of fact arising upon exceptions to the examiner's report, the court shall cause the same to be referred to a jury either at the term of court which may then be in session or at the next term of the court or at any succeeding term of the court to which the case may be continued for good and lawful reasons. It shall be the duty of the judge to expedite the hearing of the case and not to continue it unless for good cause shown or upon the consent of all parties at interest. The issue or issues of fact shall be tried before the jury, in the event jury trial is requested, upon the evidence reported by the examiner except in cases where, under law, evidence other than that reported by an auditor may be submitted to the jury on exceptions to an auditor's report. Furthermore, in cases where the examiner has reported to the court findings of fact based on his personal examination, either party may introduce additional testimony as to such facts, provided that the party will make it appear under oath that he has not been fully heard and given full opportunity to present testimony on the same matter before the examiner. The verdict of the jury upon the questions of fact shall operate to the same extent as in the case of exceptions to an auditor's report in an ordinary civil action.
(d) In all matters not otherwise provided for, the procedure upon the examiner's report and the exceptions thereto shall be in accordance with procedure prevailing as to the auditor's reports and exceptions thereto.
(e) The right to grant a new trial upon any issue submitted to a jury and the right of appeal shall be as provided for in Code Sections 5-6-37 through 5-6-44, 5-6-48, and 5-6-49.
(f) The judge may refer or recommit the record to the examiner in like manner as auditor's reports may be recommitted or he or she may on his or her own motion recommit it to the same or any other examiner for further information and report. When an exception or exceptions to the examiner's report have been sustained by the court or by verdict on the trial of an issue of fact or when the appellate court reverses the judgment of the trial court, it shall not be necessary for the trial court to recommit the case to an examiner, but the judge shall proceed to enter a decree in accordance with the law and the facts as thus established and appearing from the record; provided, however, that if the judge, in his or her discretion, is of the opinion that it is in the interests of truth and justice that a recommitment to an examiner should be made, the judge may, upon the motion of any party or on his or her own motion, order a recommitment of the whole case or any part thereof or for the taking of additional testimony upon any matter which the court deems necessary to the rendition of a true and correct decree.
For the purposes of this article, every clerk of the superior court, every judge of the probate court, and every other officer in this state having charge of public records shall allow every examiner appointed by any court in this state free inspection of all the public records relating to his office and in any manner pertaining to any matter under the investigation of an examiner.
In any case, by consent of the parties or upon the order of the judge, the examiner may procure the services of a stenographer to report the testimony taken before him. The stenographer's compensation, unless agreed on by the parties, shall be fixed by the judge and taxed as costs.
(a) The governing authority of each county shall provide the following books for the clerk of the superior court in the county:
(1) A book, to be known as the “register of decrees of title,” in which the clerk shall enroll, register, and index all decrees of title;
(2) A book, to be known as the “title register” and to be prepared, printed, and ruled in substantially the manner as provided in Code Section 44-2-234, in which the clerk shall enroll, register, and index the certificate of title provided for in this part and all subsequent transfers of title and note all voluntary or involuntary transactions in any way affecting the title to said land which are authorized to be entered thereon; and
(3) Such additional books as may, from time to time, be necessary.
(b) Upon the registration of the decree and certificate of title, the clerk shall issue, under the seal of his office, an owner's certificate of title which shall be delivered to the owner or his duly authorized agent or attorney.
Every entry made in the register of decrees of title, in the title register, or upon the owner's certificate under any of the provisions of this article shall be signed by the clerk and dated with the year, month, day, hour, and minute accurately stated.
(a) The clerk of the superior court shall determine whether any instrument, writing, record, or other matter is in proper shape for registration and shall correctly and legally make the registration, including all formal incidents thereto. The clerk shall be liable to any injured person for any failure of duty in this respect.
(b) All registrations of title and all entries and notations made by him upon the title register of transfers or of the cancellation or discharge of liens or encumbrances shall be prima facie conclusive. Unless a caveat shall be filed, as provided for in Code Section 44-2-134, seeking to set aside, modify, or otherwise affect such entry, notation, or registration, within 12 months from the date of the making of the same upon the title register, the same shall become absolutely conclusive upon all persons. This subsection shall be considered and construed as a statute of limitations against the questioning of the correctness of the clerk's action and shall be without exception on account of disabilities but shall not operate as a limitation in favor of the clerk regarding any action against him for wrongdoing or neglect of duty.
(c) In the event application is made to a clerk to have any transfer or other transaction registered or noted and he is in doubt as to whether the same should be registered, entered, or noted or is in doubt in regard to any detail thereof, either the clerk or any party at interest may petition the judge of the court for direction. After it has appeared that the parties at interest have had reasonable notice, the judge may proceed to hear the matter and to give directions and instructions to the clerk; and it shall be the duty of the clerk to follow the directions and instructions of the court.
(d) In all matters required of the clerk under this article, he shall be subject to the direction and orders of the court.
Before registering any voluntary transfer, the clerk shall satisfy himself that the same is witnessed and attested or acknowledged in accordance with law. The clerk and the sureties on his bond shall be liable for any loss or damage occasioned to any person through registration of a transfer not so executed.
If a clerk of the superior court is disqualified by reason of relationship, interest, or any other cause or in case of the death or other disability of the clerk to act in any matter arising under this article, the duties required of the clerk may be performed either by the judge of the probate court of the county or by a special clerk appointed by the judge for that purpose. The entry of the appointment of the special clerk and of the purpose for which he is appointed shall be entered and recorded upon the minutes of the court.
(a) Wherever a transfer, transfer as security for debt, or mortgage relating to an estate in registered land is executed in the form prescribed in this article and duly registered and noted in the register of titles and consists of nothing more than the filling in of the blanks on the prescribed form so that the entry of registration on the title register construed in connection with the prescribed form shows the full transaction, it shall not be necessary to record the transfer, security transfer, or mortgage other than by the registration in the title register. Such registration shall for all purposes take the place of recordation as to such instruments so executed. A certified copy of such registration shall be admissible in evidence on like terms and with like effect as a certified copy of a deed, mortgage, or other similar instrument. In such cases, the original instrument of transfer, together with the canceled owner's certificate, or the original instrument of transfer as security for debt, or the original mortgage, as the case may be, shall be numbered with the registration number of the title to which it relates and carefully filed away in such manner as to be of easy access and shall be preserved as a part of the records of the office of the clerk of the superior court. In case of a mortgage executed as indicated above, the clerk shall on request make a certified copy and deliver it to the mortgagee; and such certified copy shall stand for all purposes in lieu of the original and shall be original evidence to the same extent as is an original mortgage in any court.
(b) If the instrument of transfer is in the short form as indicated above, or if it contains any provisions not provided for in such form, or if it was executed for the purpose of transferring any estate or interest in the registered land in trust, upon any condition or upon any peculiar or unusual limitation, the details at variance with or additional to those provided for under the prescribed form need not be entered in full on the title register and the owner's certificate; but the clerk shall record such instrument in full on the deed book of the county in like manner as deeds to unregistered land are recorded and shall, after the general entry of the transfer on the title register and on the owner's certificate, add thereto a notation that the same is “in trust,” “upon condition,” or “on special terms,” as the case may be, followed by the words “See deed book (or mortgage book, as the case may be) _____ page _____.” Like procedure shall be followed in case of a transfer to secure debt or a mortgage not following the prescribed form, but in such cases the clerk shall not retain the original instrument but shall return the same to the creditor after it has been registered and recorded.
Any writing or instrument for the purpose of encumbering or otherwise dealing with equitable interests in registered land or tending to show a claim of lien or encumbrance thereon or right therein may be noted on the certificate of title in the title register with such effect as it may be entitled to have.
All registered encumbrances, rights, or adverse claims affecting registered estates shall continue to be noted upon every outstanding certificate of title and owner's certificate until they have been released or discharged unless they relate to only a particular portion of the property, in which case they shall be noted only upon those certificates and duplicate certificates which relate to that portion of the property.
Every voluntary or involuntary transaction which if recorded, filed, or entered in any clerk's office would affect unregistered land shall, if duly registered on the title register, be notice to all persons from the time of such registration and shall operate in accordance with law and this article upon such registered land.
Except as otherwise provided in this article, in cases of involuntary transactions no transfer of the title shall be registered except upon an order granted by the judge of the court in the form substantially provided in Code Section 44-2-244.
Upon the grant of letters of administration or executorship by the probate court and upon presentation of a certified copy of the letters to the clerk of the superior court together with the presentation of the owner's certificate, the clerk shall make a special entry on the certificate of title on the title register showing the presentation of the letters of administration or executorship, the name of the representative, the court and county of his appointment, and the dates of the letters and of the transfer of the title to the representative. The clerk shall thereupon cancel the certificate of title and the owner's certificate outstanding in the name of the decedent and shall issue to the administrator or the executor, as the case may be, a new owner's certificate. If the decedent was the owner of only a fractional undivided interest in the title and the outstanding certificate stood in the name of the decedent and others or if from any other cause the decedent was not the sole owner of the certificate, the outstanding certificates shall nevertheless be canceled and a new certificate registered and a new owner's certificate issued with the name of the personal representative substituted for the name of the decedent.
(a) Where the owner of registered land dies intestate and there is no administration upon the estate within 12 months from the date of his death or in the event administration shall terminate without the land being disposed of, the heirs at law of the intestate or any one or more of the persons who claim to be heirs at law of the intestate may petition the superior court of the county to have their title by descent declared as to the registered land.
(b) The petition:
(1) Shall set forth the names of all persons who are alleged to be the heirs at law and, if all are not joined, process or notice shall be served upon all those not joined;
(2) Shall be verified by the affidavit of one of the petitioners;
(3) Shall set forth in detail the name and last known address of the decedent;
(4) Shall include a statement whether he was married, single, or a widower and, if married more than once, the names of all of his wives;
(5) Shall include the names of all children and descendants of children, if any, showing in detail whether the parents of such children are living or dead;
(6) Shall show in detail how and whether the persons who are alleged to be the heirs at law are in fact the heirs at law of such decedent under the rules of inheritance;
(7) Shall give the date of the death of the decedent;
(8) Shall set forth that the decedent died leaving no will; and
(9) Shall state that in the judgment of the applicant there is no need for administration upon the estate.
(c) Upon the petition being filed, the judge shall grant an order setting the petition down to be heard at the courthouse in the county where the land is located, on some day not less than 30 days from the date of the petition, and calling on all persons to show cause before the court on that day why the persons named as heirs at law in the petition should not be so declared to be by the judgment and decree of the court. A copy of the petition and the order of the court thereon shall be published in the newspaper in which the sheriff's sales of the county are advertised in like manner as sheriff's sales are advertised.
(d) On the day named for the hearing, unless the matter is continued by order or orders of the judge to some future time, the court shall proceed to hear and determine the question together with any objections which may be filed and to adjudge and decree that the alleged decedent is dead, that there is no administration on his estate, that he left no will, and who are his heirs at law; provided, however, that if it appears that either the alleged decedent is not dead, or that there is administration upon the estate, or that an application for administration is pending, or that the decedent left a will, the petition shall be dismissed.
(e) Upon granting an order of heirship, the court shall order a transfer of the registered title from the decedent to the heirs at law; and, upon production of the owner's certificate of the decedent and the judge's order for a transfer, the clerk shall register the transfer, cancel the certificate registered in the name of the decedent, cancel the owner's certificate, and issue a new owner's certificate in the name of the persons declared to be the heirs at law.
(f) In the petition if the alleged heirs at law are of full age and under no disabilities and the same so appears to the court and if it further appears that they have voluntarily partitioned the land in kind among themselves, the court may, in connection with the order of transfer, direct that the certificate standing in the name of the decedent be canceled and that new certificates be registered and issued to each of the heirs for the particular parcel of land coming to each under the voluntary partition set forth in the petition.
(g) If the decedent has left a widow, she shall be a party to the proceedings. The court shall specifically provide what interest or estate she shall take under the decree of heirship; and, except where in the decree the land is partitioned into separate tracts, the court shall, in the decree of heirship and in the order of transfer, specifically set forth, except where the widow is the sole heir, what undivided interest each heir shall take.
(h) If the decedent is a female, the procedure shall be similar except insofar as the difference between the rights of the husband and wife upon the death of the spouse shall make changes necessary.
(i) Where the wife claims to be entitled to take possession of the estate without administration under former Code Section 53-4-2 as such existed on December 31, 1997, if applicable, or Code Sections 53-1-7 and 53-2-1, the procedure shall be substantially in the same manner.
Whenever an involuntary transfer is sought to be registered under this article and the owner's certificate is not produced so that it can be attached to the order directing a transfer, the court shall have the power to issue a subpoena for the production of documentary evidence or any other process designed to compel the production of the owner's certificate, including attachment for contempt. If, after the process issues, the owner's certificate is not produced or if it appears to the court that there is no practical means of compelling its production, the court may nevertheless grant the order of transfer but shall cause the clerk to enter a cancellation of the certificate of title on the title register and to give notice once a week for four weeks in the newspaper in which the sheriff's sales of the county are advertised that such certificate has been canceled; the cost of making the advertisement shall be deposited with the clerk before the judge shall grant the order of transfer without the production of the certificate.
Whenever an owner's certificate of title is lost or destroyed, the owner or his personal representative may petition the court for the issuance of a duplicate. Notice of the petition shall be published once a week for four successive weeks in the newspaper in which the sheriff's sales of the county are published; provided, however, that the court may in any case order additional notice to be given, either by publication or otherwise, before directing the issuance of a duplicate certificate; and provided, further, that where the petition is presented by a personal representative of a deceased person claiming that the certificate was lost or destroyed while in the possession of the decedent, the notice of the petition shall be published once a week for eight successive weeks instead of the four weeks required in other cases. Upon satisfactory proof having been exhibited before it that the certificate has been lost or destroyed, the court may direct the issuance of a duplicate certificate which shall be appropriately designed and shall take the place of the original owner's certificate.
(a) If any person at interest objects to any entry, registration, or notation made by the clerk upon the title register, he may, unless such entry, registration, or notation has become conclusive by lapse of time under Code Section 44-2-122, file with the clerk of the superior court a caveat setting forth the entry, notation, or registration to which he objects, what interest he has in the subject matter, and the ground of his objection and praying for such relief as he desires and deems appropriate under the circumstances. The clerk shall note upon the title register the fact that a caveat has been filed and by whom and to what entry, notation, or act of registration it applies.
(b) After the filing of the caveat has been noted, the matter shall be presented to the judge who shall order all persons at interest to show cause on a day named why the relief prayed for in the caveat should not be granted. Upon proof being made that due notice has been given to all parties at interest, the judge shall proceed to hear the matter and shall render a judgment of the court giving direction to the matter and may thereupon require such entry, registration, or notation to be canceled or modified and may require the outstanding certificate of title and owner's certificate to be modified accordingly. To that end the court may require the outstanding owner's certificate of title to be brought into court by subpoena for the production of documentary evidence or other process, including attachment for contempt; and, if the court finds that production of the certificate cannot be compelled, it shall provide for publication of notice of the court's action thereon for a period of time not less than once a week for four weeks in the newspaper in which the sheriff's sales of the county are advertised, the expense of making the publication to be provided for in such manner as the court shall order.
In order to cause notations of judgments, liens, encumbrances, or special rights of any kind, other than voluntary transactions, claimed by any person against registered land to be made, the person desiring the notation shall, by himself, his agent, or his attorney, file, upon a form substantially in compliance with Code Sections 44-2-246 through 44-2-248, a request for the notation to be made setting forth the claim against the registered land; and, in case the lien or special rights relate to any other matter of record or court proceeding, he shall state the book and page where recorded and, if it relates to any special right, shall succinctly give the details of the right so claimed. In case the notation is for the purpose of protecting the lien of a judgment, the person making the application for the notation shall produce and exhibit to the clerk the execution or a certified copy of the judgment except in cases where the judgment is rendered in the superior court of the same county where the registration is made, in which event production of the execution or certified copy of the judgment shall not be required; but the clerk may act upon inspection of the original judgment on the minutes of his own court.
(a) Voluntary cancellations may be made of any mortgage, certificate of indebtedness, or any lien, equity, encumbrance, lis pendens, or other similar matter relating to registered land or any interest therein and may be entered by the clerk upon the title register and the owner's certificate. The entry, notation, or registry of such cancellation may be made upon the written authority of the person for whose benefit the original registration, notation, or entry was made or upon the written authority of his personal representative or his lawful assignee, in a form substantially in compliance with that prescribed in this article, and attested by any officer authorized to attest deeds; alternatively, it may be made upon order of the judge. In case of a creditor's certificate the same shall also be surrendered and canceled. Notations of delinquent taxes or assessments may be canceled upon the production of a certificate of the proper tax officer showing that such taxes or assessments have been paid.
(b) If the holder of the mortgage, certificate of indebtedness, or any lien, equity, encumbrance, lis pendens, or other similar matter relating to the registered land or any interest therein refuses to give the requisite authority for the cancellation thereof if and when the debt has been paid or no longer exists or when it is no longer legal and equitable that the registered title should be encumbered by the same, any person adversely affected may petition the court for an involuntary cancellation of the same. In such case, the judge shall cause a rule nisi to be served upon such holder requiring him or her to show cause on a day set, which day shall be not less than 30 days from the date the rule was served, why the mortgage, certificate of indebtedness, lien, or other encumbrance on the registered title should not be canceled. The petition and rule nisi shall be served personally on such holder at least 15 days before the date set for the hearing if such service be practical; but, when it is made to appear to the court that personal service cannot be practically effected, the judge may pass an order providing how the service shall be made. In case the holder is not a resident of this state or is unknown, service by publication shall be made upon the order of the judge in the manner prescribed in Code Section 9-11-4. In case of minors and persons of unsound mind, guardians ad litem shall be appointed. If any issue of fact as to the right of the petition to have the cancellation made appears, such issue shall, upon demand of either party, be tried by jury, with right of the judge to grant a new trial. If it appears that the registered title should be freed from the encumbrance, the court shall decree accordingly and order the cancellation noted upon the certificate of title. The judge shall have power by attachment for contempt, if necessary, to compel the holder of the mortgage certificate of indebtedness or other instrument to surrender it for cancellation.
(a) Except in cases of fraud or forgery to which he is a party or to which he is a privy without valuable consideration paid in good faith, every registered owner of any estate or interest in land brought under this article shall hold the land free from any and all adverse claims, rights, or encumbrances not noted on the certificate of title in the title register except:
(1) Liens, claims, or rights arising or existing under the laws or Constitution of the United States which the laws of this state cannot require to appear of record under registry laws;
(2) Taxes and levies assessed for the current calendar year;
(3) Any lease for a term not exceeding three years under which the land is actually occupied; and
(4) Highways in public use and railroads in actual operation.
(b) No proceedings to attack or to set aside any transaction for such fraud or such forgery referred to in this Code section shall be brought or be entertained by any court unless the same is brought within seven years from the date of the transaction or of the registration to which the same relates. Nothing in this subsection shall conflict with the provisions of this article allowing attack for good cause to be made upon a registration made by the clerk at any time within 12 months from the date of such registration.
Notwithstanding any other provision of this article, any injured party may bring an action against any person or officer through whose fraud or negligence he may have suffered any loss or damage arising out of any acts of omission or of commission of such person or officer in connection with the matters and things arising from this article. All such actions shall be governed by the statutes of limitation which would otherwise relate to the transaction.
Title to or right or interest in registered land in derogation of that of the registered owner may be acquired by prescription or adverse possession.
Except as otherwise specifically provided by this article, registered land and ownership therein shall be subject to the same rights, burdens, and incidents as unregistered land and may be dealt with by the owner and shall be subject to the jurisdiction of the courts in the same manner as if it had not been registered. Transfers of title made by the last registered owner as shown by the title register or said owner's representatives, heirs, or assigns and recorded in the deed records in the office of the clerk of superior court of the county in which the land is situated shall be valid transfers of title to the land so described.
Any person who has any interest in registered land and whose name has been changed by marriage or other cause may, by petition to the judge of the court and upon proof of the facts, obtain an order directing the clerk to note the change of name upon the title register and upon the owner's certificate upon its being produced.
No judgment, levy, or other lien except a lien for taxes for which special provision is made in this article shall be effective against registered land so as to affect any person taking a transfer thereof or obtaining any right or interest therein unless and until a notation of such judgment, levy, or lien is made upon the title register. The pendency of any action affecting the title to registered land or any interest therein shall not be held to be notice to any person other than the actual parties to such action unless a notation of the pendency of such action is made upon the title register.
(a) The registered owner of the fee simple title to land may cause a transfer of the title to be registered to “himself, his heirs and assigns, free from further registration.” Thereupon the land and the title thereto shall be free from the necessity of subsequent registration and shall, as to subsequent transactions, be exempt from this article so far as the interest of the person thus freeing it from registration and subsequent holders under him are concerned; but, as to such interest, the certificate of title and owner's certificate registered and issued on the last transfer shall stand as a conclusive source of subsequent title to the same extent as if it were a grant from the state. However, if the interest thus freed is, according to the title register, subject to liens, exceptions, encumbrances, trusts, or limitations of any kind, such liens, exceptions, encumbrances, trusts, or limitations shall not be affected but shall be noted on the owner's certificate as issued on the last transfer and shall be effective as long as they shall exist. If the fee simple is registered undividedly in the name of more than one person such as tenants in common or other like relationship of joint or common interest, it shall not be freed from registration except upon the unanimous action of the owners of the entire fee.
(b) A decree of registration rendered on or after February 15, 1952, shall operate to free the registered land from further registration unless it expressly provides that the land shall remain subject to this article.
(c) All lands heretofore registered in this state are declared to be free of further registration unless the order registering said title shall provide otherwise. The certificate of title and owner's certificate registered and issued on the last transfer shall stand as conclusive source of subsequent title. If the previously registered land has been devised, conveyed, or otherwise transferred by the last registered owner or said owner's representative, title shall vest in the party to whom the land was transferred or that party's heirs, successors, and assigns, notwithstanding the failure to have had the same transferred on the title register as provided in prior statutes; provided, however, if the land or interest freed is subject to a valid outstanding lien, exception, encumbrance, trust, or limitation according to the title register, the same shall not be affected but shall be effective as long as the same shall validly exist.
Deeds conveying title to all registered estates shall be recorded in the same manner as deeds conveying title to unregistered lands are recorded. All previous conveyances of interests in registered lands by the last registered owner or said owner's representatives, heirs, or assigns and recorded in the deed records in the office of the clerk of the superior court in which the land is situated shall be valid transfers of said interests. Upon request, the clerk of the superior court is authorized to note on the title register the information regarding the transfers and that the land is no longer required to be transferred on said register under this article, “The Land Registration Law.”
(a) Whenever a part of any registered land is to be transferred or conveyed, such transfer or conveyance shall be in a form substantially the same as that used for a total transfer; but it shall set forth particularly and specifically the portion of the land transferred, if it is an undivided interest, or, if it is a particular portion of the tract, it shall describe the portion accurately and definitely.
(b) In case an undivided interest is transferred, upon presentation of the transfer together with the owner's certificate of title, the clerk shall not cancel the owner's certificate so presented nor the certificate of title on the title register but shall enter a notation of the partial transfer on the certificate of title, on the title register, and on the owner's certificate; and the clerk shall also register upon the title register a certificate of title in the name of the grantee of the undivided portion of the estate so transferred and shall issue him a corresponding owner's certificate setting out the part or amount of land transferred, as the case may be.
(c) If the transfer is of a divided part of the land, the clerk shall first enter the fact of the transfer upon the certificate of title on the title register and shall cancel the certificate of title on the title register and the owner's certificate of title. Thereupon, he shall register separate new certificates of title on the title register, one in the name of the transferee for the portion of the tract conveyed to him and the other in the name of the transferor for the portion retained; and the clerk shall also issue separate new owners' certificates accordingly.
(d) The clerk shall note upon the title register and the owners' certificates the reference and cross-reference to the certificates referred to in subsections (b) and (c) of this Code section.
The owner or owners of a tract of land embraced in a certificate may divide it into smaller tracts and, upon surrender of his or their owner's certificate, cause separate certificates to be issued for the respective smaller tracts. The procedure in such cases shall be for the owner or owners to petition the judge and to attach to or include within the petition a map or plat showing the tract as registered and the subdivision for which they desire the new certificates. The judge shall examine the petition and the plat and, if he is not fully satisfied that the content of the original tract is exactly equivalent to the sum of the contents of the smaller tracts into which it is subdivided, may order a survey at the owner's expense. If and when the judge is satisfied on this subject, he shall pass an order directing the clerk to cancel the certificate of title on the record upon surrender of the outstanding owner's certificate and to issue new and separate certificates of title and owners' certificates for the smaller tracts into which the original tract is subdivided, all of which new certificates shall carry the same limitations and notations as the canceled certificate, as in the case of a transfer.
The owner of any registered land who desires to convey the land as security for debt and with power of sale without foreclosure may do so by a short form of transfer substantially in the form provided in Code Section 44-2-241. The form shall be signed and properly acknowledged or attested as if it were a deed to land and shall be presented together with the owner's certificate to the clerk. The clerk shall note on the owner's certificate and on the certificate of title in the title register the name of the creditor, the amount of debt, and the date of maturity of the debt and shall show that a creditor's certificate has been issued therefor. When only a part of the registered estate is so conveyed, the clerk shall note on the book and the owner's certificate the part so conveyed. The clerk shall retain, number, and file away the instrument of transfer and shall issue and deliver to the creditor a creditor's certificate, over his hand and seal, setting out the portion so conveyed. All registered encumbrances, rights, or adverse claims affecting the estate represented thereby which are in existence at the time the creditor's certificate is issued shall be noted thereon.
The creditor's certificate shall be assignable or negotiable to the same extent as the note or other evidence of indebtedness secured thereby may be, but assignments or transfers of the creditor's certificate need not be noted on the title register. A transfer or assignment of the indebtedness shall operate to transfer the creditor's certificate securing the same in like manner and to the same extent as is set forth in Code Section 10-3-1, relating to the case of transfer of indebtedness secured by mortgage, unless otherwise agreed between the parties. The creditor's certificate may be surrendered and canceled at any time by the owner thereof. It shall be the creditor's duty to surrender the certificate and give an order for cancellation of the same when the debt is paid. If he refuses, he may be compelled by the court to do so and in any proper case the judge may order a cancellation on the title register. Upon presentation of an order of cancellation with the surrendered creditor's certificate or upon presentation of the judge's order directing cancellation, the clerk shall enter a notation of the same in the register of titles and on the owner's certificate of title.
If the debt secured by a creditor's certificate or any part thereof becomes due and unpaid, the holder of the creditor's certificate may, after advertising the property for sale in the manner prescribed by law for advertising sheriff's sales of land, sell the property at auction before the courthouse door of the county and sell it to the highest and best bidder for cash. The sale need not be conducted by the creditor or holder of the creditor's certificate personally but may be conducted through any agent or attorney. The holder of the certificate, his agent, or his attorney shall thereupon make an oath to the facts and apply to the judge for an order of transfer to the purchaser. The application shall be accompanied by a certified copy of the certificate of title from the title register as of the date of the sale. The judge shall cause at least five days' notice to be given to the debtor and to any persons who, according to the title register, have acquired any interest in the property subsequent to the issuance of the creditor's certificate; and, if no objections are made or if objections are made after a hearing, the judge shall grant an order of transfer with such directions for cancellation of other certificates and entries and otherwise as shall be in accordance with the justice of the case and with the spirit of this article. The proceeds of the sale shall be applied first to the payment of the costs of advertising the sale and obtaining the judge's order of transfer, then to the payment of the debt, and any remainder shall be paid to the debtor or his order.
Nothing in this article shall prevent the owner of land from transferring his registered title as security for debt or from causing the title to be registered in the name of the creditor by transferring to the creditor as if he were an ordinary vendee of the registered title; and, if bond for title or bond to reconvey is given, it may be noted on the certificate of title on the title register and on the owner's certificate, provided it is attested or acknowledged as if it were a deed.
Unrecorded transfers of owner's certificate to registered lands shall have the same validity as unrecorded deeds of conveyance. The validity and priority of unrecorded transfers shall be governed by Code Sections 44-2-1, 44-2-3, and 44-2-4.
Subject to the powers, rights, and duties of administration, the personal representative of the deceased owner shall hold registered real estate as trustee for the persons beneficially entitled thereto by law. Unless otherwise entitled by law to commissions, the personal representative shall be entitled to no commissions thereon except in cases of necessary sales in the due course of administration. The heirs at law or beneficiaries entitled by law to the real estate shall have the same power of requiring a transfer of such estate as if it were personal estate.
After a transfer of registered land has been made to the heirs at law or to the widow claiming to be the sole heir as stated in Code Section 44-2-131, a personal representative appointed at any time thereafter to administer the estate of the decedent shall not be entitled to have such registered land transferred to him for purposes of administration; but, if it appears that the heirs have appropriated to their use and ownership property which should have been appropriated to the purposes of administration, the personal representative of the decedent shall have a right of action against the heirs for the value of the property so appropriated, the judgment in such action to be molded according to the exigencies of the particular case, in accordance with the principles of equity.
(a) Whenever an administrator who has caused registered land to be transferred into his name stands ready to be discharged, if it is not necessary to sell such registered land for the purposes of administration and it should properly go to the heirs at law of the decedent, such administrator may institute a proceeding substantially similar to that prescribed in Code Section 44-2-131 for the ascertainment of the heirs at law and for an order directing the transfer of such estate from him to such heirs.
(b) If a trustee holds title to registered land and the beneficiaries of the trust are not definitely and particularly disclosed, if it becomes appropriate that they be definitely ascertained, such trustee may in like manner petition the court, upon showing that the trust has become executed, for a decree settling and ascertaining who the beneficiaries are and directing a transfer to such beneficiaries.
Wherever, as the result of a proceeding in any court, it is adjudged that a transfer of registered land should be made, such transfer may be made by the clerk upon the production of a certified copy of the decree showing in what book and page of the minutes of the court the decree is recorded and an order of the judge of the superior court of the county in which the land is located directing the transfer to be made. Once the certified copy and the order are produced, the certificate of title on the register of titles and the owner's certificate shall be canceled and new certificates shall be registered and issued accordingly. Production of the certified copy of the decree shall not be required when it is rendered in the same court as that in which the title is registered, but the clerk shall act upon the judge's order of transfer and the inspection of his own minute book.
Whenever it is desired to have an involuntary transfer registered, petition therefor shall be made to the judge of the court. The judge may hear the facts or, in his discretion, may refer the petition to an examiner of titles to hear and report the facts. The judge shall see to it that all parties at interest are given reasonable notice before any order of transfer is made. Whenever, in his judgment, the interests of justice so require, the judge shall cause notice of the petition to be published in the newspaper in which the sheriff's sales of the county are advertised for not less than four times in four separate weeks. Before granting an order directing the transfer, the judge shall fully satisfy himself that all parties who have or may have an interest in the matter of the transfer have been notified; that, in the case of minors or other persons under disability, guardians ad litem have been appointed to represent their interests; and that there is no valid reason why the order directing involuntary transfer should not be made. Thereupon, he shall enter a decree or judgment upon the minutes of the court, reciting the facts and stating that an order of transfer has been issued, and shall issue the order of transfer in substantially the form and manner prescribed in this article.
Nothing in this article shall prevent any transfer or other dealing with registered land from being attacked in court as having been made for the purpose of hindering, delaying, or defrauding creditors; provided, however, that, upon the trial of the case, the court having jurisdiction finds that the person taking the transfer or the apparent beneficiary of the dealing took the benefit of the same with knowledge of the fact that the intention of the transaction was to hinder, delay, or defraud creditors; and provided, further, that none of the rights of innocent parties shall be affected. If, in the proceeding, the court having jurisdiction of the case finds that any transfer or other dealing with registered land was made for the purpose of hindering, delaying, or defrauding creditors and that the rights of no innocent parties will be prejudiced by the court's judgment or decree, the court may pass such judgment or decree as will void the transfer or the effect of such other transaction as may have been made to hinder, delay, or defraud creditors. Upon the decree or judgment of the court, the judge of the superior court of the county where the land is located, upon application as provided in Code Section 44-2-173, may direct such cancellations and transfers to be entered upon the title register and upon the owner's certificate as shall be necessary to carry the decree or judgment into effect.
Whenever a writing or record is filed for the purpose of transferring registered land in trust, or upon any condition or unusual limitation expressed in the instrument, or with power given to sell, encumber, or deal with the land in any manner, no subsequent transfer or voluntary transaction purporting to be exercised under the powers given in the writing, instrument, or record shall be registered on the title register or on the owner's certificate except upon application to the court and an order of direction from the judge to the clerk as to how the subsequent transaction shall be entered.
After December 31 of every year, it shall be the duty of every officer charged with the collection of any taxes or assessments charged upon any registered land or any interest therein which have not been paid when due to cause a notation of the fact that those taxes or assessments have not been paid to be entered upon the certificate of title on the title register along with the amount thereof. Unless such notation is made, the delinquent tax or assessment shall not affect any transfer or other dealing with the registered land; but the tax officer failing to perform such duty and his surety shall be liable for the payment of the taxes and assessments, with all lawful penalties and interest thereon, if any loss is occasioned to the state, county, municipality, or other political subdivision on account of such failure.
Upon the original registration of any land under this article, there shall be paid to the clerk as an assurance fund one-tenth of 1 percent of the value of the land to be determined by the court. The fund shall be subject to the trusts and conditions set forth in this part for the uses and purposes of this article.
All money received by the clerk under Code Section 44-2-190 shall be kept in a separate account and paid promptly into the state treasury upon the special trust and condition that such moneys shall be set aside by the state treasurer in trust as a separate fund for the uses and purposes of this article, to be known as the “Land Registration Assurance Fund,” which fund is appropriated to the uses and purposes set forth in this article.
The moneys collected pursuant to Code Section 44-2-190, insofar as they are not required to satisfy any judgment certified against the assurance fund under Code Section 44-2-195, shall be invested by the state treasurer in state bonds or validated county or municipal bonds in trust for the uses and purposes set forth in this article until the fund amounts to the sum of $ 500,000.00. The income or so much thereof as may be required may be applied towards the payment of the expenses of the administration of this article and the satisfaction of any such judgment. Whenever and so long as the face value of the bonds purchased shall equal the sum of $ 500,000.00, other money thereafter coming into the fund together with any income not required for the purposes set forth in this Code section shall be transferred from the Land Registration Assurance Fund to the general fund.
(a) Any person entitled to notice who had no actual notice of any registration under this article depriving him of any estate or interest in land and who is without remedy under this article may, within two years after accrual to him or to some person through whom he claims the right to bring such action, bring an action against the state treasurer in the superior court in the county where such land is located for the recovery out of the assurance fund of any damages to which he may be entitled by reason of any such deprivation. The state treasurer shall be served by the second original of proceedings so filed, which service shall be sufficient.
(b) The assurance fund shall be defended in such action and in any appeal by the Attorney General. The measure of damages shall be the value of the property at the time the right to bring the action first accrued; and any judgment rendered therefor shall be paid as provided in Code Section 44-2-195.
(c) If any person entitled to bring such action shall be under the disability of infancy, insanity, imprisonment, or absence from the state in the service of the state or of the United States at the time the right to bring such action first accrued, the action may be brought by him or his privies within two years after the removal of such disability.
(d) Notwithstanding subsection (a) of this Code section, all nonresidents of the state and all persons who are described in the proceedings as being unknown, or of unknown address, or as to whom it appears from the record that they could not be found so as to be served shall be considered as having had actual notice when notice has been published in accordance with this article.
If an action contemplated by Code Section 44-2-193 is brought to recover for loss or damage arising only through the legal operation of this article, the state treasurer shall be the sole defendant. If the action is brought to recover for loss or damage arising on account of any registration made or procured through fraud, neglect, or wrongful act of any person not exercising a judicial function, both the state treasurer and such person or persons shall be made parties defendant.
If judgment shall be rendered for the plaintiff in any action brought pursuant to Code Section 44-2-193, execution shall issue against any defendants other than the state treasurer. If such execution is returned unsatisfied in whole or in part or if there are no such defendants, the clerk of the court in which the judgment was rendered shall certify to the state treasurer the amount due on the judgment; and the same shall be paid by the state treasurer out of the assurance fund under the special appropriation made of the fund for such purpose. Any person other than the state treasurer against whom any such judgment may have been rendered shall remain liable therefor or for so much thereof as may be paid out of the assurance fund; and the state treasurer may bring action at any time to enforce the lien of such judgment against such person or his estate for the recovery of the amount, with interest, paid out of the assurance fund.
If, at any time, the assurance fund is insufficient to satisfy any judgments certified against it as provided in Code Section 44-2-195, the unpaid amounts shall bear interest and shall be paid out of any money thereafter coming into the fund in the order in which they were accrued.
The assurance fund shall not under any circumstances be liable for any loss, damage, or deprivation occasioned by a breach of trust, whether express, implied, or constructive, on the part of the registered owner of any estate or interest in land.
(a) The fees payable under this article to the examiner of titles shall be as follows:
(1) For examining a title and making a report to the court, an examiner shall receive $ 1.00 per $ 1,000.00 or fraction thereof on the value of land, as determined by the court, not to exceed a maximum $ 100.00, and postage, plus $ 10.00; and
(2) In contested cases, for hearing the case and making a report to the court, the judge may, in his discretion, allow additional compensation but in an amount not exceeding the same fee as that allowed an auditor for reporting his findings in equity cases under subsection (a) of Code Section 9-7-22. The examiner shall not be paid extra for reporting the evidence; but when a stenographer is used by consent of the parties or order of the judge, the stenographer shall be paid his usual fee.
(b) The following fees shall be collected for the services of the sheriff under this article:
(1) For ascertaining and reporting to the courts the names and addresses of the persons actually occupying the premises described in the petition, a fee as provided in paragraph (1) of subsection (b) of Code Section 15-16-21 for each separate residence;
(2) For each service of process and notice required, a fee as provided in paragraph (1) of subsection (b) of Code Section 15-16-21; and
(3) For posting a copy of the petition upon the premises, fees as provided in paragraph (6) of subsection (b) of Code Section 15-16-21.
(c) For any other services of the clerk, the sheriff, or the surveyor which are not especially provided for in this Code section, a fee shall be fixed by the court to conform with what is usual and lawful for similar services rendered by such officer in ordinary cases.
(d) Upon filing each application for initial registration, the applicant shall pay to the clerk the fee for civil cases as provided in Code Section 15-6-77.
(e) In all contested cases and in all matters referred to the judge for his direction by any of the provisions of this article, the judge shall award the cost of the proceeding accordingly as in his discretion the justice of the case may dictate and, to that end, may assess all the costs against one of the parties or may divide the costs among the parties in such ratio as seems just.
The judges of the superior courts may, from time to time, make general rules and forms for procedure relating to the subjects dealt with in this article and may modify the forms prescribed in this part. Such rules and forms shall be uniform throughout the state and shall be subject to this article and the general laws of this state.
The following is prescribed as the form of petition to be used when application is made for the original register of lands:
--IN THE SUPERIOR COURT OF _____ COUNTY--
--STATE OF GEORGIA--
| | ) | | | --- | --- | --- | | In re petition | ) | Civil action | | of _____________ | ) | File no. _______ | | | ) | |
--ORIGINAL PETITION FOR REGISTRATION OF LANDS--
The petition of _____ shows:
The petitioner applies to have the land hereinafter described brought under the provisions of the Land Registration Law, and his title thereto confirmed and registered as provided therein, and under oath shows the following facts:
--1.--
Full name of each applicant
--2.--
Residence of each applicant
--3.--
Post office address of each applicant
--4.--
The name and address of applicant's agent or attorney upon whom process or notices may be served (not required unless applicant is a nonresident)
--5.--
Full description of the lands (giving also land district and lot numbers where the land lies in that portion of the state where the lands have been surveyed by districts and numbers; and if more than one parcel is included, describe each parcel separately and distinctly).
containing _____ acres.
--6.--
What is the value thereof? $
--7.--
At what value was it last assessed for taxes? $
--8.--
What interest or estate does the applicant claim therein?
--9.--
What is the value of the interest or estate claimed by the applicant? $
--10.--
From whom did the applicant acquire the land?
--11.--
Does the applicant claim title by prescription?
(If so, set forth fully the color of title, if any, under which the prescription is claimed, and state the details of the possession by which it is claimed prescription has ripened. If the color of title consists of one or more instruments of record on the public records of the county, such instruments need not be copied or exhibited to the application otherwise than by giving the name of the grantor and the grantee, the date and nature of the instrument, and a reference to the book and page where recorded.)
--12.--
Does applicant claim title by a complete chain of title from the state or other original source of title?
--13.--
Is there a true and correct abstract of applicant's title papers attached hereto?
--14.--
Do you know, or have information, of any other deed, writing, document, judgment, decree, mortgage, or instrument of any kind not set forth in the abstract which relates to this land or any part thereof, or which might affect the title thereto or some interest therein? If so, state the same.
--15.--
Has the land, or any part thereof, ever been set apart as a homestead or exemption or as dower? If so, state particulars.
--16.--
Who is now in possession of the land?
--17.--
Do you know anyone else who claims to be in possession of the land or any part thereof? If so, give name and address.
--18.--
Give name and address of each person occupying the land or any part thereof, and state by what right or claim of right such occupancy is held.
--19.--
Give the name, residence, and address of each and every person, other than the applicants, who claim any interest, adverse or otherwise, vested or otherwise, in the land or any part thereof, stating the nature of the claim, and if any such persons are under disability of any kind, state the nature of the disability.
| | | | Disability | Nature of | | --- | --- | --- | --- | --- | | Name | Residence | Address | (if any) | Claim | | ___________________________________________________________________________________________________ | | | | | | ___________________________________________________________________________________________________ | | | | | | ___________________________________________________________________________________________________ | | | | | | ___________________________________________________________________________________________________ | | | | | | ___________________________________________________________________________________________________ | | | | | | ___________________________________________________________________________________________________ | | | | |
--20.--
Give the name, residence, and address of the holder of every known lien, whether considered by the applicant to be valid or not.
| | | | Nature of | | --- | --- | --- | --- | | Name | Residence | Address | Lien | | ___________________________________________________________________________________________________ | | | | | ___________________________________________________________________________________________________ | | | | | ___________________________________________________________________________________________________ | | | | | ___________________________________________________________________________________________________ | | | | | ___________________________________________________________________________________________________ | | | |
--21.--
Give the names and addresses of the owners and occupants of all adjoining lands.__________
--22.--
Is the land subject to any easement, except public highways and railroads in actual operation? If so, state fully._______________
--23.--
Give age of applicant. _____
--24.--
Is the applicant male or female? _____; married or single? _____; widow or widower? _____
--25.--
If married, give wife's (or husband's) name, and include her or him in the list of defendants.__________
--26.--
The applicant names as defendants the following persons whose names have been given above: _________________________ and also all other persons “whom it may concern.”
Wherefore the applicant prays process and judgment accordingly.
| | ________________________________________ | | --- | --- | | | Petitioner's attorney |
(To be sworn to by each applicant. Verification in case of a corporation may be made by any officer thereof; in case of minor or other persons under disability, by the person filing the petition in his behalf.)
I do swear that I have read the foregoing petition, and have examined the schedules thereto attached, and that the same are true to the best of my knowledge and belief, and that nothing has been withheld in the answers which would in anywise affect the title to the land or any interest therein or which would disclose any person claiming an adverse interest, valid or not. I do further swear that I bona fide believe that the applicant is the true owner of the estate he seeks to have registered.
| | ________________________________________ | | --- | --- | | | Petitioner |
Sworn to and subscribed before me, this _____ day of _____, _____.
| | ________________________________________ | | --- | --- | | | Notary |
(If more than one applicant, they may verify jointly or by separate affidavits.)
--EXHIBIT A--
--(Attach abstract of title)--
The following is prescribed as the form of process to be attached to the petition:
--IN THE SUPERIOR COURT OF _____ COUNTY--
--STATE OF GEORGIA--
To the sheriffs of said state and their lawful deputies:
The respondents _____
and all other persons whom it may concern are required to show cause before said court, on the _____ day of _____, _____, (not less than 40 nor more than 50 days from date of process) why the prayers of the foregoing petition should not be granted, and why the court should not proceed to judgment in such cause.
Witness the Honorable _____, judge of said court, this the _____ day of _____, _____.
| | ________________________________________ | | --- | --- | | | Clerk |
The advertisement to be inserted in the newspaper in which sheriff's sales of the county are advertised for four insertions in separate weeks should be substantially in the following form:
--IN THE SUPERIOR COURT OF _____ COUNTY--
--STATE OF GEORGIA--
| In re petition | ) | Civil action | | --- | --- | --- | | of _____________ | ) | File no. _______ | | | ) | |
To whom it may concern, and to (here insert the names of all respondents, if any, who reside beyond the limits of the state, or whose place of residence is unknown):
Take notice that _____ has filed in said court a petition seeking to register the following lands under the provisions of the Land Registration Law: (Here describe lands). You are warned to show cause to the contrary, if any you have, before said court on the _____ day of _____, _____.
This _____ day of _____, _____.
| | ________________________________________ | | --- | --- | | | Clerk |
Acknowledgment of service may be made in the following form, provided it is entered on the petition or entitled in the action and is signed in the presence of the judge, the clerk, the examiner, or any other person or official authorized by law to administer oaths, take acknowledgments, or act as a notary public or official witness and is attested by such officer:
Due and legal service of the within and foregoing petition for registration is acknowledged. Further service, process, and notice waived, this the _____ day of _____, _____.
| | ________________________________________ | | --- | --- |
In the presence of _____.
The sheriff's return should be made substantially in the following form and entered on or attached to the petition:
| STATE OF GEORGIA, | | --- | | ________ COUNTY |
I have served copies of the within petition and process, or of the summons in substitute therefor, upon the following persons at the time and in the manner stated, as follows:
I have also gone upon the land and posted in a conspicuous place on the land described herein and upon each separate tract thereof and upon every dwelling house and every building used as a place of business upon said land, a copy of the notice as required by law, and have taken the same into the custody of the court.
The following is the name and post office address of each and every person above the age of 14 years actually occupying the premises: ____________________
This _____ day of _____, _____.
| | ________________________________________ | | --- | --- | | | Sheriff |
The clerk should also enter on the petition a certificate substantially in the following form:
I certify that on the _____ day of _____, _____, I mailed to each of the following persons a copy of the within petition and process to his post office address as disclosed by the record:
and that advertisement has been published in accordance with law, a copy of said advertisement being hereto attached.
This _____ day of _____, _____.
| | ________________________________________ | | --- | --- | | | Clerk |
A form reading substantially as follows should be used in appointing examiners:
--IN THE SUPERIOR COURT OF _____ COUNTY--
--STATE OF GEORGIA--
| In re petition | ) | Civil action | | --- | --- | --- | | of _____________ | ) | File no. _______ | | | ) | |
--ORDER--
_____, a competent attorney at law, of good standing in his profession and of at least three years' experience, is hereby appointed an auditor in and for the _____ Judicial Circuit, to discharge the duties of examiner as provided in the Land Registration Law. This appointment is _____ (either general or for a particular case, as the case may be).
This _____ day of _____, _____.
| | ________________________________________ | | --- | --- | | | Judge, Superior Court |
The examiner is required to take the following oath, to be filed along with the order of his appointment in the office of the clerk of the superior court of his residence:
“I, _____, do swear that I will faithfully, well, and truly perform the duties of examiner under the Land Registration Law, according to law to the best of my skill and ability.
| | ________________________________________ | | --- | --- |
Sworn to and subscribed
before me, this _____, _____, _____”
Upon the clerk's notifying the judge that a petition has been filed, the judge shall promptly refer the petition to an examiner in substantially the following form:
--IN THE SUPERIOR COURT OF _____ COUNTY--
--STATE OF GEORGIA--
| | ) | | | --- | --- | --- | | In re petition | ) | Civil action | | of _____________ | ) | File no. _______ | | | ) | |
--ORDER--
Application having been filed to register __________ land, it is hereby ordered that this matter be and is referred to _____, as examiner for proceedings in conformity with the Land Registration Law.
This _____ day of _____, _____.
| | ________________________________________ | | --- | --- | | | Judge |
The following is suggested as the general form of the preliminary report of an examiner:
--IN THE SUPERIOR COURT OF _____ COUNTY--
--STATE OF GEORGIA--
| | ) | | | --- | --- | --- | | In re petition | ) | Civil action | | of _____________ | ) | File no. _______ | | | ) | |
--PRELIMINARY REPORT--
Application to register__________
__________ land having been duly considered, the undersigned, as examiner, makes the following preliminary report:
I have examined all records as required by the Land Registration Law.
I attach an abstract of the title (Schedule A) as shown on the public records and so far as obtainable from other trustworthy sources.
The names and addresses of all persons, so far as I have been able to ascertain, who have any interest in the land, are set out in Schedule B hereto, showing their several apparent or possible interests and indicating upon whom and in what manner service should be made. A like disclosure of all adjoining landowners is set out in Schedule C hereto.
I find the following to be a history of the possession __________
Special attention is called to the following matters: __________
This _____ day of _____, _____.
| | ________________________________________ | | --- | --- | | | Examiner |
--SCHEDULE A--
--(Attach examiner's full abstract)--
--SCHEDULE B--
Names and addresses of all persons having apparent or possible interests in the land, other than applicants, and indicating upon whom and in what manner further service, if any, should be made _______________
--SCHEDULE C--
Names and addresses of all adjoining owners: _______________
The following is suggested as the general form of the examiner's final report:
--IN THE SUPERIOR COURT OF _____ COUNTY--
--STATE OF GEORGIA--
| | ) | | | --- | --- | --- | | In re petition | ) | Civil action | | of _____________ | ) | File no. _______ | | | ) | |
--FINAL REPORT--
Application to register __________ land having been duly considered, the undersigned, as examiner, makes this his final report:
The preliminary report filed by the undersigned is made a part hereof, and is correct, except as herein otherwise stated. The following proceedings have occurred before the examiner, and accompanying herewith is a brief (or a stenographic) report of the evidence taken on the hearing: __________
In Exhibit _____, hereto, is a report of the matters ascertained by the independent examination of the examiner.
My conclusions of fact are set forth in Exhibit _____ hereto annexed.
My conclusions of law are set forth in Exhibit _____ hereto annexed.
I find the state of the title to be as follows: _________________________
I find that there are liens and encumbrances on the land as follows: _______________
This _____, _____.
| | ________________________________________ | | --- | --- | | | Examiner |
Decrees of title should be rendered in accordance with the following form:
--IN THE SUPERIOR COURT OF _____ COUNTY--
--STATE OF GEORGIA--
| | ) | | | --- | --- | --- | | In re petition | ) | Civil action | | of _____________ | ) | File no. _______ | | | ) | |
--DECREE OF TITLE--
The above entitled action coming on to be heard and it appearing to the court that process has been served and notice given and publication made, all in full compliance with the Land Registration Law, and that all the requirements of said Law have been complied with, it is decreed, ordered, and adjudged that the title to the lands involved: (here describe lands) is held and owned as follows:
The fee simple belongs to __________
subject to the following limitations and conditions: __________
It is further ordered and decreed that said lands be and they are hereby brought under the operation and provisions of the Land Registration Law, and the title of the said _____ in and to the estate herein set forth above is confirmed and ordered registered; subject, however, to the following liens and encumbrances: _______________ and subject also to __________
Let this decree be entered on the minutes of this court and on the register of decrees of title of said county.
In open court this _____ day of _____, _____.
| | ________________________________________ | | --- | --- | | | Judge |
(a) It is contemplated by this article that the book known as the register of decrees of title shall be made up in the following manner:
(1) It shall be of such size that each page may contain a full copy of the decree of title;
(2) Only one decree should be entered on any page;
(3) Each page should have printed thereon the form of the decree of title as prescribed in Code Section 44-2-232 with ample spacing left in the blanks;
(4) At the bottom of the page should be the words:
“Entered and registered this _____ day of _____, _____, at _____: _____. M. and certificate of title No. issued thereon.
| | ________________________________________ | | --- | --- | | | Clerk” |
and
(5) At the top of the page and preceding the copy of the decree should be the words, “Registered Title No. _____.” The first decree entered is numbered “Registered Title No. 1,” the second “Registered Title No. 2,” and so on in continuous, consecutive order. The registered title number of a registered tract never changes though any number of subsequent certificates may be issued thereon; therefore, the registered title number and the certificate number will usually be different.
(b) Even though several separate tracts may be joined in the same application, the judge should render separate decrees as to each tract; and these decrees should be separately entered and given separate registered title numbers. Every certificate of title, owner's certificate, and creditor's certificate must carry on it, in addition to its own certificate number, the registered title number of the decree under which the tract to which it pertains was registered.
(c) A part of the register of decrees of title shall be an alphabetical index thereto which the clerk shall carefully keep. Whenever a decree is entered on the register of decrees of title, the clerk shall immediately index it in the name of the person in whose favor the title is registered under proper alphabetical head, the name being followed by the registered title number. If the decree is in favor of more than one person, it shall be separately indexed under the name of each and every one of them, the name of each of said persons being shown under the proper alphabetical head.
(a) It is contemplated by this article that the title register shall be a well-bound book with pages not less than 18 inches wide. It shall be labeled on the back with the words “Title Register” followed by the name of the county. For convenience, additional labels may be used in order to show what certificates are included, for example, “Certificates 1501-2000, inclusive,” or other similar information. It shall be printed and ruled in substantially the following form:
(b) The two pages facing each other on the register shall constitute the original certificate of title when the blanks are duly filled in and signed by the clerk. The first certificate of title in the book should be numbered “Certificate No. 1,” the next one “Certificate No. 2,” and so on, in continuous, consecutive order. If a new book is opened, the numbering therein should begin with the number next succeeding the last number in the book just completed.
(c) In registering a certificate of title, in addition to the certificate number, the registered title number should also be inserted. The registered title number is always the same as that which appears on the decree of title, by virtue of which the land to which the certificate relates was originally registered. Therefore, every certificate of title registered in the title register shall bear a different certificate number from every other certificate of title registered therein; but all certificates of title which refer to the same registered tract, no matter how many such certificates may be issued in the course of time, shall bear the same registered title number.
(d) The clerk shall keep an alphabetical index of the title register. This may most conveniently be kept in a separate book. Whenever a certificate of title is entered in the title register, the clerk shall insert in the index, under proper alphabetical head, the name of the person in whose favor the certificate is registered, the reference to the certificate number, and the reference to the registered title number. Whenever a certificate is entered in the name of more than one person, the name of each shall be likewise alphabetically indexed.
When registering a certificate of title upon a transfer, the clerk shall bring forward and appropriately enter on the new certificate of title all entries and notations appearing on the certificate from which the transfer is made, except such as shall have been canceled. In transcribing entries brought forward, the clerk will note under the column headed “Remarks” against such entries the words “Brought forward.”
Upon request of any person and the payment of lawful fees, the clerk shall issue a certified copy of any certificate of title or of any entry thereon in like manner as he may issue certified copies of any other public record in his office; but, whenever he does so, he shall plainly mark in large legible letters across the face of the certificate the word “copy.” If a certified copy of a canceled certificate or entry is made, in addition to transcribing a copy of the entry of cancellation, the clerk shall also plainly mark the words “canceled certificate” or “canceled entry,” as the case may be, across the face of the copy.
Whenever a plat of the premises which is too large or too intricate for easy transcription on the register of decrees of title or on the certificate of title is a part of the description of the lands or is used to aid description, it shall not be necessary for the clerk to copy such plat on the register of decrees of title or on the certificate of title. In lieu of copying such plat, the clerk shall record it and shall note a reference to the book and page where recorded.
Whenever, in the registering of any certificate of title or any notation or entry on the title register, it is found that the description of the premises or the portion thereof involved or any other detail in connection with the transaction is too lengthy to be transcribed in full in the proper space on the register, it shall be permissible to record the instrument, document, or writing in which such lengthy detail or description is contained on some public record book of the county and, instead of setting forth the description or other detail, as the case may be, in extenso on the title register, to state it in general terms with the reference for further particulars to the public record where recorded as follows: “For further detail, see Deed Book _____, page _____.” Such registration shall be adequate to all intents and purposes, and the record thus made on the public record shall be considered as a part of the certificate of title contained on the title register.
Whenever any of the description or details of a certificate of title on the title register are set out in full in some other record of the clerk's office with reference thereto on the title register as provided in Code Section 44-2-238, like reference shall be made on the owner's certificate and on the creditor's certificate when thereafter issued; but, if the holder of the owner's certificate or creditor's certificate shall so require, the clerk shall make a full and complete copy of the record to which reference is made, certify it as such, and attach it to the owner's certificate or the creditor's certificate, as the case may be. For making and certifying such copy of the recorded document or writing and attaching it to the owner's certificate or creditor's certificate, as the case may be, the clerk shall be paid as provided for in paragraphs (4) and (5) of subsection (g) of Code Section 15-6-77, relating to the certification of records.
(a) The form of the owner's certificate of title shall correspond in general with the certificate of title form except that it shall be headed with the words “Owner's Certificate of Title.” It is suggested that it be prepared on paper of suitable size which shall be folded into four pages. The first page shall contain the certificate proper omitting the notations and special entries. The inner pages, pages 2 and 3, shall be ruled and written or printed, preferably the latter, in conformity with the form shown in Code Section 44-2-234 for the printing and ruling of the title register for the entry of transfers, liens, encumbrances, creditors' certificates, and other like matters, these two pages being treated for this purpose as a single sheet so that ample space will thereby be given for the crosswise extension of the entries. The back, or fourth, page shall be endorsed as follows:
--OWNER'S CERTIFICATE OF TITLE--
Registered Title No. _____
Certificate No. _____
Issued to _____
Georgia, _____ County
Entered and Registered (in lieu of certificate No. _____, which has been canceled).
This the _____ day of _____, _____, at _____:__________. M.
| | ________________________________________ | | --- | --- | | | Clerk, Superior Court |
(b) In case of the first issuance of the owner's certificate on the granting of a decree of registration, the words shown in parenthesis in the endorsement should be omitted.
(c) It is suggested that convenience will be served by folding the certificate in the manner of folding documents written on legal cap or foolscap paper and by writing or printing the endorsement in the style and manner in which similar endorsements are usually put on legal documents. When printed blanks are prepared for use in this connection, it is also suggested that a blank form of transfer be printed on part of the fourth page other than that part used for the endorsement. However, space should be left on the fourth page for such entries as the clerk may be required to make, from time to time, under this article such as certifying that the certificate is valid with all entries noted to date.
The following are prescribed as the regular forms of transfer, but other forms may be used in accordance with this article:
--TRANSFER OF WHOLE OF REGISTERED ESTATE--
In consideration of __________
the undersigned, __________
hereby transfers, sells, and conveys to _____ his entire right, title, estate, and interest in the tract of land described in the certificate of title No. , hereto attached, registered as Registered Title No. in the office of the clerk of the Superior Court of _____ County, Georgia.
This _____ day of _____, _____.
| | ________________________________________ | | --- | --- |
Signed, sealed, and delivered in the presence of:
--TRANSFER OF UNDIVIDED INTEREST IN REGISTERED ESTATE--
In consideration of , the undersigned, , hereby transfers, sells, and conveys to _____ an undivided _____ interest in the tract of land described in the certificate of title No. hereto attached, registered as Registered Title No. in the office of the clerk of the Superior Court of _____ County, Georgia.
This _____ day of _____, _____.
| | ________________________________________ | | --- | --- |
Signed, sealed, and delivered in the presence of:
--TRANSFER OF DIVIDED PORTION OF A REGISTERED ESTATE--
In consideration of _____, the undersigned hereby transfers, sells, and conveys to _____ his entire right, title, interest, and estate in and to the following lands: _____
_____,
being a divided portion of the tract of land described in the certificate of title No._____ hereto attached, registered as Registered Title No._____ in the office of the clerk of the Superior Court of _____ County, Georgia.
This _____ day of _____, _____.
| | ________________________________________ | | --- | --- |
Signed, sealed, and delivered in the presence of:
--TRANSFER TO SECURE DEBT, WITH POWER OF SALE--
To secure a debt payable to _____ in the sum of __________ evidenced as follows: _________________________ the undersigned hereby transfers, sells, and conveys to said __________ all the title of the undersigned in and to the tract of land described in the certificate of title No. , herewith shown, registered as Registered Title No. in the office of the clerk of the Superior Court of _____ County, Georgia, with power to sell the same after lawful advertisement, without foreclosure, in accordance with the provisions of the Land Registration Law, if any part of said debt is not paid at maturity.
This _____ day of _____, _____.
| | ________________________________________ | | --- | --- |
Signed, sealed, and delivered in the presence of:
(a) The following is a form of the creditor's certificate referred to in this article:
--CREDITOR'S CERTIFICATE--
State of Georgia, _____ County:
Registered Title No. _____
Certificate No. _____
I hereby certify that the title to the estate hereinafter mentioned in the following described land lying in said county, _____
is registered under the provisions of the Land Registration Law and thereby vested in ____________________
as security for a debt created by the holder of the owner's certificate of title to said estate, (here insert name of the holder of the owner's certificate); said debt being particularly described as follows: __________
with power conferred to sell the same after lawful advertisement, without foreclosure, in accordance with the provisions of the Land Registration Law, if any part of said debt is not paid at maturity. The estate in said land so held is as follows: __________
subject to the following limitations, conditions, encumbrances, etc., _____ and such other as may be noted hereon.
Witness my hand and seal of office, this _____ day of _____, _____, at _____:__________. M.
| | ________________________________________ | | --- | --- | | | Clerk, Superior Court, __________ County |
(Official Seal)
(b) All uncanceled entries appearing on the certificate of title at the time the creditor's certificate is issued shall be noted and entered on the creditor's certificate.
(c) The creditor's certificate shall bear an endorsement on its back in the following form:
--CREDITOR'S CERTIFICATE--
Registered Title No. _____
Certificate No. _____
On lands registered in the name of __________ Issued to _____ Georgia, _____ County.
Entered and registered this _____ day of _____, _____, at _____:__________. M.
| | ________________________________________ | | --- | --- | | | Clerk, Superior Court |
Where only a portion of the registered land or only an undivided interest is transferred to secure a debt, the instrument of transfer and the creditor's certificate may be in the same form as those prescribed in Code Sections 44-2-241 and 44-2-242 with the exception that the portion or the undivided interest shall be distinctly stated.
(a) Where the judge orders a transfer to be made under any of the provisions of this article, the judge's order of transfer shall be in the following form unless the exigencies of the case require a different form:
IN THE SUPERIOR COURT OF _____ COUNTY
STATE OF GEORGIA
| | ) | | | --- | --- | --- | | In re petition | ) | Civil action | | of _____________ | ) | File no. _______ | | | ) | |
--JUDGE'S ORDER OF TRANSFER--
For good cause shown to the court, the clerk is directed to cancel the Certificate of Title No. _____, Registered Title No. , standing in the name of _____ on the title register and to register a certificate of title in lieu thereof, as follows: in accordance with the decree of court rendered in the action of _____ v. in _____ court; and transfer of title is accordingly ordered. You will enter this transfer upon the title register, noting upon the same a reference to the book and page upon which the above-recited order or decree may be found.
This order of transfer shall be effective upon the presentation of the outstanding owner's certificate, which you will cancel. * _______________
This _____ day of _____, _____.
| | _________________________________________________ | | --- | --- | | | Judge |
(*If the court has not been able to require the production of the outstanding owner's certificate, the judge shall erase this sentence from the order and substitute in the blank space below it the following: “You will cause notice to be published, in accordance with the law, that the certificate is canceled.”)
(b) If the exigencies of the case require a variation from the above prescribed form, the clerk shall also record the judge's order on the minutes of the court and, under the appropriate heading in the entry of transfer on the title register, write the words “Special, See Minute Book _____, page _____.” If the judge's order of transfer is made without obtaining production of the outstanding owner's certificate, the clerk, in entering the transfer, shall, under the heading “Remarks,” write “Owner's certificate not produced, but canceled by publication.”
(a) The regular form of mortgaging shall be as follows:
The undersigned _____ to secure the following indebtedness _______________ mortgages to _____ the estate, title, and interest of the undersigned in and to all of the tracts of land described in the certificate of title No. , herewith shown, registered as Registered Title No. in the office of the clerk of the Superior Court of _____ County, Georgia.
| | ________________________________________________ | | --- | --- |
This _____ day of _____, _____.
Signed, sealed, and delivered, in the presence of:
(b) If only a part or undivided interest is mortgaged, the word “all” shall be stricken and a particular description of the portion or interest mortgaged shall be inserted.
(c) Mortgages executed pursuant to this Code section may be registered as regular instruments as provided in this article. Mortgages in other forms and with other provisions may be registered but shall also be recorded in accordance with the provisions of this article regulating the registration of irregular instruments.
Delinquent taxes and assessments shall be noted on the title register when the officer charged with the collection of taxes files with the clerk a certificate substantially in the following form:
--NOTATION OF DELINQUENT TAXES--
I certify that _____ (state, county, or city, as the case may be) has a lien for unpaid taxes (or assessments, as the case may be) for the year _____ against the land described in certificate No. _____, Registered Title No. _____, registered in the office of the clerk of the Superior Court of _____ County, in the amount of $ _____. The clerk will please note the same on the title register.
This _____ day of _____, _____.
| | ________________________________________________ | | --- | --- | | | Tax Collector |
The regular form to be used for the notation of a judgment on the title register is as follows:
--NOTATION OF JUDGMENT--
To the clerk of the Superior Court, _____ County, Georgia:
Please note on certificate of title No. _____, Registered Title No. _____, a judgment issued from _____
Court of _____ in favor
of _____ v._____ for the amount of _____.
This _____ day of _____, _____.
| | ________________________________________________ | | --- | --- |
(a) The regular form to be used where any person desires a notation to be made of any lien, encumbrance, or special right, other than voluntary transactions and other than those otherwise provided for in this part, is as follows:
--REQUEST FOR NOTATIONS OF SPECIAL RIGHT--
The undersigned _____
claims against the land described in certificate No. _____, Registered Title No. _____, registered in the office of the clerk of the Superior Court of _____ County, the following lien (encumbrance, equity, or special right, as the case may be): _____ in proof of which reference is had to the following record or court proceeding _____.
Please note the same upon the register of title accordingly.
| | ________________________________________________ | | --- | --- |
Sworn to and subscribed before me this
_____ day of _____, _____.
(b) The above form may be used to give notice of a lis pendens.
(c) If the description of the alleged encumbrance, equity, or special right is too lengthy to note with convenience on the blanks in the title register, the request for the notation of the same shall be recorded on the deed book of the county; and the clerk shall register only a general description of it but shall note under the appropriate column heading in the title register the reference “Special, see Deed Book _____ page _____.”
The owner of a creditor's certificate may authorize the clerk to register the cancellation thereof by writing thereon “Canceled. The clerk will please cancel the same on the title register” and dating and signing the same in the presence of an officer authorized to attest deeds. If the person owning the creditor's certificate is not the person in whose name it was issued and if the original creditor has not endorsed it in blank, the owner signing the cancellation shall also make an affidavit that he is the owner of the creditor's certificate and entitled to cancel it. The creditor's certificate shall be surrendered to the clerk at the time of the registration of the cancellation.
Authority for the clerk to cancel entries of other liens, mortgages, encumbrances, special claims, and like matters may be conferred by the execution by the person in whose favor such matters exist or his personal representative of a request as follows:
--REQUEST TO CANCEL ENTRY--
To the Clerk of the Superior Court of _____ County:
You are directed to cancel the entry registered in my favor on certificate of title No. _____, Registered Title No. _____, claiming the following lien (encumbrance or special right, as the case may be) ____________________
This _____ day of _____, _____.
| | ________________________________________________ | | --- | --- |
The holder of an uncanceled owner's certificate of title may at any time present it to the clerk and have the clerk enter on the owner's certificate all entries and notations of every kind which appear on the certificate of title which have not already been entered on the owner's certificate. The clerk shall thereupon endorse on the owner's certificate the words “Valid, with all entries noted to this date. This _____ day of _____, _____, at _____: __________. M.” and shall officially sign the endorsement.
The county governing authority shall furnish the clerk with the necessary durable filing cases. He shall carefully number and file away all papers relating to and dealing with registered lands. All the papers relating to each registered title shall be filed together and separately from the papers relating to any other registered title, in such regular consecutive numerical arrangement as to make them easily accessible at all times.
This article shall be known and may be cited as the “Georgia Land Sales Act.”
As used in this article, the term:
(1) “Agent” means any person who represents, or acts for or on behalf of, a developer in selling or leasing or offering to sell or lease any lot or lots in a subdivision but shall not include an attorney at law whose representation of another person consists of rendering legal services.
(2) “Blanket encumbrance” means:
(A) Any deed to secure debt, trust deed, mortgage, mechanic's lien, or any other lien or financial encumbrance securing or evidencing money debt and affecting subdivided land or affecting more than one lot or parcel of subdivided land; or
(B) Any agreement affecting more than one such lot or parcel by which the subdivider holds such subdivided land under an option, contract to purchase, or trust agreement; provided, however, that taxes and assessments levied by public authority are not deemed to be encumbrances within the meaning of this paragraph.
(3) “Business day” means any calendar day except Sunday or any national legal public holiday.
(4) “Common promotional plan” means a plan undertaken by a single developer or a group of developers acting in concert to offer lots for sale or lease; where such land is offered for sale by such a developer or group of developers acting in concert and, where such land is contiguous or known, designated, or advertised as a common unit or by a common name, such land shall be presumed, without regard to the number of lots covered by each individual offering, as being offered for sale or lease as part of a common promotional plan.
(5) “Conspicuous statement” means a statement in boldface and conspicuous type which shall be a type size of at least ten points. Such statement shall always be shown larger than all other nonconspicuous statements in the body of the document in which it is required.
(6) “Developer” or “subdivider” or “owner” means any person who, directly or indirectly, sells or leases, or offers to sell or lease, or advertises for sale or lease any lots in a subdivision.
(7) “Disposition” or “dispose of” means any sale, exchange, lease, assignment, award by lottery, or other transaction designed to convey an interest in a subdivision or parcel, lot, or unit thereof, if undertaken for gain or profit.
(8) “Offer” means every inducement, solicitation, or attempt to bring about a disposition.
(9) “Person” means an individual, firm, company, association, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, unincorporated association or organization, two or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity.
(9.1) “Property report” means a written statement given to prospective purchasers by the developer or the developer's agent disclosing such information about the subdivision as required by this article.
(10) “Purchaser” means a person other than a developer or lender who acquires an interest in any lot, parcel, or unit in a subdivision.
(11) “Sale” means every sale, lease, assignment, award by lottery, solicitation, or offer to do any of the foregoing concerning a subdivision, if undertaken for gain or profit.
(12) “Subdivision” or “subdivided land” means:
(A) Any contiguous land which is divided or is proposed to be divided for the purpose of disposition into 50 or more lots, parcels, units, or interests; or
(B) Any land, whether contiguous or not, which is divided or proposed to be divided into 50 or more lots, parcels, units, or interests which are offered as a part of a common promotional plan.
(a)(1) It shall be unlawful for any person to offer for sale or to sell any subdivided land to any person in this state unless such offering complies with this article or is exempt under Code Section 44-3-4. Any person offering to sell any subdivided land shall provide each prospective purchaser a property report containing the following:
(A) Information about the subdivider to include the name, street address, form of organization, and telephone number of the subdivider; the state or foreign jurisdiction in which the subdivider is organized and the date of organization; a statement of authorization to do business in this state, if the subdivider is a foreign corporation; the name and address of the subdivider's resident agent; the name and address of the person to whom correspondence concerning the subdivider should be addressed; the name, address, and telephone number of the person or persons who are in charge of the subdivider's sales in this state; and a statement indicating where the subdivider's records are located;
(B) Information about the subdivided land to include the total acreage in the subdivision as a whole, including land held for future expansion; the number of lots, parcels, or tracts included in the filing; the number of acres in the filing; the size of the smallest parcel to be offered for sale; the county and state in which the land is located; the name of the nearest incorporated town; and the route and distance from the nearest incorporated town to the land;
(C) Information about the title of the subdivided land to include the name, address, and telephone number of the record titleholder;
(D) Information about any existing or contemplated future improvements to include statements of the condition of drainage control systems, streets, roads, sewage disposal facilities, sidewalks, electrical services, telephone connections, water supply, gas supply, clubhouses, golf courses, and other recreational facilities; a statement as to whether any performance bonds or other obligations have been posted with any public authority to assure the completion of any improvements; a statement as to whether the county or city wherein the land lies has agreed to accept maintenance of any improvements other than recreational facilities; a statement as to whether any contracts have been made with any public utility for the installation of any improvements; a statement as to the existence or contemplated future existence of any improvement maintenance charge; and a statement as to whether all improvements promised to purchasers are included in the sales contracts;
(E) The provisions of any zoning ordinances and regulations affecting the subdivided land and each lot or unit thereof;
(F) A statement of all existing taxes or assessments affecting the subdivided land;
(G) The terms and conditions of sales of the subdivided land and a statement which declares any sums which purchasers will be required to pay other than the actual purchase price, with interest, and any taxes or assessments validly imposed by any governmental authority;
(H) A statement which indicates whether the subdivision has been approved or disapproved for loans by any lending institutions or agencies;
(I) The names of the governmental authorities or private entities which will provide police protection, fire protection, and garbage collection;
(J) The name and address of the person who prepared the registration statement;
(K) A statement which indicates the use for which the property is offered;
(L) The estimated costs, dates of completion, and the party responsible for the construction and maintenance of all existing and proposed improvements which are referred to in connection with the offering or disposition of any interest in the subdivided land including such party's name and address;
(M) A conspicuous statement on the top two-thirds of the front cover of the property report which reads as follows:
“YOU MAY CANCEL WITHOUT PENALTY OR OBLIGATION ANY SALES AGREEMENT WHICH YOU HAVE SIGNED WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER SIGNING ANY SALES AGREEMENT AND YOU ARE ENTITLED TO RECEIVE A REFUND. IF THIS PROPERTY REPORT WAS NOT GIVEN TO YOU BEFORE YOU SIGNED ANY SALES AGREEMENT, YOU MAY CANCEL THE SALES AGREEMENT WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER YOUR RECEIPT OF THIS PROPERTY REPORT AND YOU ARE ENTITLED TO RECEIVE A REFUND. YOU MAY NOT GIVE UP OR WAIVE THIS RIGHT TO CANCEL. IF YOU DECIDE TO CANCEL A SALES AGREEMENT, YOU MUST NOTIFY THE DEVELOPER IN WRITING WITHIN THE CANCELLATION PERIOD OF YOUR INTENT TO CANCEL BY SENDING NOTICE BY CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, TO (insert the name and address of the developer or the developer's agent). YOUR NOTICE WILL BE EFFECTIVE ON THE DATE YOU MAIL IT.”
(N) A conspicuous statement on the bottom third of the front cover of the property report which reads as follows:
“THE PURCHASER SHOULD READ THIS DOCUMENT BEFORE SIGNING ANYTHING”;
(O)(i) Except as provided in division (ii) of this subparagraph, a conspicuous statement which reads as follows:
“THIS IS A REAL PROPERTY TRANSACTION. YOU OR YOUR ATTORNEY SHOULD REVIEW THE DOCUMENTS RELATING TO THIS TRANSACTION ON FILE IN THE SUPERIOR COURT OF THE COUNTY WHEREIN THE PROPERTY IS LOCATED.”
(ii) If the subdivision is located outside the State of Georgia, then the conspicuous statement must read as follows:
“THIS IS A REAL PROPERTY TRANSACTION. YOU OR YOUR ATTORNEY SHOULD REVIEW THE DOCUMENTS RELATING TO THIS TRANSACTION ON FILE IN THE APPROPRIATE LAND RECORDS OF THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED.”
(2) Every subdivider shall make available at the project location to every purchaser for inspection thereof the following documents:
(A) A legal description of the subdivided land;
(B) A general map, drawn to scale, showing the total subdivided land area and its relation to the existing streets, roads, waterways, schools, churches, shopping centers, and bus and rail transportation in the immediate vicinity and showing all lands reserved for future expansion, if any;
(C) A copy of the conveyances by which the subdivider or owner acquired title to the land, with such copy bearing the public record book and page number;
(D) A copy of all instruments presently creating liens, mortgages, encumbrances, reservations, or defects upon the use of title of the subdivided land included in the filing;
(E) A copy of the title insurance policy or an attorney's title opinion for the subdivided land, issued within 30 days of the date of submission of the registration statement;
(F) A copy of each deed restriction, if any;
(G) A copy of the purchase agreement to be employed in the sales program;
(H) A copy of the deed to be employed in the sales program;
(I) Statements from the appropriate governmental agencies approving the installation of the improvements enumerated in subparagraph (D) of paragraph (1) of this subsection, including, but not limited to, a statement of approval from the state water quality control board concerning the sewage disposal facilities and siltation;
(J) A statement which indicates how streets and other public places in the subdivided land are to be maintained;
(K) A copy of any contract or franchise with a public utility company, if any;
(L) A copy of a plat of the subdivided land approved by the appropriate specified governmental agency and recorded in the appropriate specified public record book, with such copy bearing the public record book and page number;
(M) A copy of any performance bonds or agreements with the public authorities guaranteeing completion;
(N) A phased development schedule for all improvements promised by the subdivider and not completed, showing each type of improvement and the month and year of the start of the improvement and the proposed completion;
(O) A statement by the subdivider of any additional and material facts that should be called to the attention of the purchaser;
(P) If the county or municipality in which the subdivision is located has a planning and zoning ordinance in effect, a certificate of approval or compliance from the local governing authority stating that the subdivision is in compliance with the applicable ordinance or, if the county or municipality in which the subdivision is located has no planning and zoning ordinance in effect, a certificate of approval from the appropriate regional commission; and
(Q) A statement of the terms of payment.
(b) The purchaser shall be informed by the subdivider of all material changes with respect to the subdivided land.
(c) The subdivider must update the property report whenever any material change occurs.
(d) The property report shall not be used for advertising purposes unless the report is used in its entirety. No portion of the report shall be underscored, italicized, or printed in larger or heavier type than the balance of the report unless specifically required by law or by this article or such emphasis is intended to call to a prospective purchaser's attention some risk or warning not otherwise readily observable.
(e) Where lots or parcels within a subdivision are subject to a blanket encumbrance, the developer shall ensure that such blanket encumbrance contains provisions evidencing the subordination of the lien of the holder or holders of the blanket encumbrance to the rights of those persons purchasing from the subdivider or provisions evidencing that the subdivider is able to secure releases from such blanket encumbrance with respect to the property.
(f) A copy of the instruments executed in connection with the sale of parcels within a subdivision shall be kept available by the subdivider and subject to inspection by the purchaser for a period of three years. The purchaser shall be notified of any change affecting the location of the records.
(g)(1) The subdivider shall cause a copy of the property report to be given to each prospective purchaser prior to the execution of any binding contract or agreement for the sale of any lot or parcel in a subdivision. If such a report is not given at least 48 hours prior to such execution, the purchaser may rescind the contract by written notice to the seller until midnight of the seventh day, Sundays and holidays excepted, following the signing of such contract or agreement. A receipt in duplicate shall be taken from each purchaser evidencing compliance with this provision. Any such election by the purchaser to void the contract or agreement must be made within seven days, Sundays and holidays excepted, following the signing of such contract or agreement. Receipts taken for any published report shall be kept on file for three years from the date the receipt is taken. If such a report is never given prior to or after the execution of any binding contract or agreement for sale, the purchaser may have rights exercisable under Code Section 44-3-8 in addition to the right of rescission given in this paragraph.
(2) The receipt in duplicate required by this subsection must be signed by the purchaser upon receipt of a property report and must contain the following language:
I hereby acknowledge that I have received the property report of (insert name of subdivision) on (insert date) at (time). If I receive the property report less than 48 hours prior to signing any contract or agreement, I understand that my right to cancel that contract or agreement is midnight of the seventh day, Sundays and holidays excepted, following the signing of such contract or agreement. I understand that I must notify the developer or the developer's agent in writing within the cancellation period of my intent to cancel by sending notice by certified mail or statutory overnight delivery, return receipt requested, to (insert name and address of developer or developer's agent). Notice will be effective on the date that it is mailed.
(h)(1) Every sales contract relating to the purchase of real property in a subdivision shall state clearly the legal description of the parcel being sold, the principal balance of the purchase price which is outstanding at the date of the sales contract after full credit has been given for the down payment, and the terms of the sales contract.
(2) Every sales contract relating to the purchase of real property in a subdivision shall provide that the purchaser shall receive a warranty deed to the property together with a copy of any purchase money deed to secure debt or purchase money mortgage as may be specified in the sales contract within not more than 180 days from the date of execution of the contract; provided, however, that, in the case of contracts to purchase dwelling units not yet completed, the warranty deed need not be delivered until 180 days after such completion.
(i) The developer must make any changes in the property report which are necessary to assure its truthfulness and accuracy at all times.
(j) When a subdivider offers additional subdivided land for sale, the subdivider shall amend the property report to include the additional subdivided land.
Unless the method of sale is adopted for the purpose of evasion of this article or of the federal Interstate Land Sales Full Disclosure Act, 1 the provisions of Code Section 44-3-3 shall not apply to offers or dispositions in an interest in land:
(1) By a purchaser of any subdivision, lot, parcel, or unit thereof for his or her own account in a single or isolated transaction;
(2) On which there is a commercial or industrial building, condominium, shopping center, house, or apartment house; or as to which there is a contractual obligation on the part of the subdivider to construct such a building within two years from date of disposition; or the sale or lease of which land is restricted by zoning ordinance, covenant, or other legally enforceable means to commercial or nonresidential purposes; or the sale or lease of which land is pursuant to a plan of development for commercial or nonresidential purposes;
(3) As cemetery lots or interests;
(4) Where the plan of sale for a subdivision is to dispose of all the interests to ten or fewer persons;
(5) Where each lot, parcel, or unit being offered or disposed of in any subdivision is five acres or more in size;
(6) To any person who is engaged in the business of the construction of residential, commercial, or industrial buildings for disposition;
(7) Where at least 95 percent of the lots or parcels of such subdivision are to be sold or leased only to persons who acquire such lots or parcels for the purpose of engaging in the business of constructing residences;
(8) Made pursuant to the order of any court of this state;
(9) Made by or to any government or government agency;
(10) Made as evidence of indebtedness secured by way of any deed to secure debt, mortgage, or deed of trust of real estate;
(11) As securities or units of interest issued by an investment trust regulated under the laws of the State of Georgia;
(12) Registered under the provisions of the federal Interstate Land Sales Full Disclosure Act;
(13) Of lots, parcels, or units contained in a recorded subdivision plat, if all of the following conditions exist:
(A) Each lot, parcel, or unit is situated on an existing paved and dedicated road or street constructed to the specifications of the board of county commissioners of the county or the governing body of the municipality, which board or governing body has voluntarily agreed to accept such road or street for maintenance and, if a waiting period is required, adequate assurances have been established with the county or municipality;
(B) The subdivision has drainage structures and fill necessary to prevent flooding, which structures and fill have been approved by the board of county commissioners of the county or the governing body of the municipality;
(C) Electric power is available at or near each lot, parcel, or unit;
(D) Domestic water supply and sanitary sewage disposal meeting the requirements of the applicable governmental authority are available at or near each lot, parcel, or unit;
(E) The subdivider is at all times prepared to convey title to the purchaser by general warranty deed unencumbered by any mortgages, deeds to secure debt, or other liens; and
(F) All promised improvements and amenities are complete;
(14) Of lots, parcels, or units contained in a subdivision plat that has been accepted by the board of county commissioners and properly recorded where:
(A) Each lot, parcel, or unit is situated on a road dedicated or approved by the board of county commissioners and arrangements acceptable to the commission have been made for the permanent maintenance of such roads;
(B) All promised improvements and amenities are complete;
(C) The promotional plan of sale is directed only to bona fide residents of this state whose primary residence is or will be located in the county in which the lots are platted of record;
(D) The method of sale is by cash or deed and first mortgage or deed to secure debt with all funds escrowed in this state prior to closing. Closing shall occur within 180 days after execution of the contract for purchase, at which time the purchaser shall receive a general warranty deed unencumbered by any mortgages or other liens except the mortgage or deed to secure debt given by the purchaser; and
(E) The purchaser has inspected the property to be purchased prior to the execution of the purchase contract and has so certified in writing;
(15) Where not more than 150 lots, parcels, units, or interests are offered for sale; or
(16) Where no representations, promises, or agreements are made that any improvements or amenities will be provided in the property by the subdivider but rather that any improvements or amenities will be furnished by the purchaser.
1 15 U.S.C.A. § 1701 et seq.
(a) It shall be unlawful for any person:
(1) To offer to sell or to sell any subdivided land in violation of any provision of this article;
(2) To offer to sell or to sell any subdivided land by means of any oral or written untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made in the light of the circumstances under which they are made not misleading, the purchaser not knowing of the untruth or omission, if such person shall not sustain the burden of proof that such person did not know and, in the exercise of reasonable care, could not have known of the untruth or omission; or
(3) To offer to sell or to sell any subdivided land by means of any property report except a property report which complies with this article unless the offer of disposition of an interest in land is exempt from the provisions of Code Section 44-3-3 pursuant to Code Section 44-3-4.
(b) It shall be unlawful for any person to make to any prospective purchaser any representation that any federal, state, county, or municipal agency, board, or commission has passed judgment in any way upon the truthfulness, completeness, or accuracy of a property report or upon the merits of such land, or has recommended or given approval to such land or transaction.
(c) It shall be unlawful for any person knowingly to cause to be made, in any document used under this article, any statement which is, at the time it is made and in light of the circumstances under which it is made, false or misleading in any material respect.
(d) It shall be unlawful for any person in connection with the offer, sale, or purchase of any subdivided land, directly or indirectly:
(1) To employ any device, scheme, or artifice to defraud; or
(2) To engage in any transaction, act, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser or seller.
(a) Whenever it appears to the district attorney or the Attorney General, either upon complaint or otherwise, that any person has engaged in, is engaging in, or is about to engage in any act, practice, or transaction which is prohibited by this article, the district attorney or the Attorney General, or both, may in their discretion apply to any court of competent jurisdiction in this state including the Superior Court of Fulton County for an injunction restraining such person and that person's agents, employees, partners, officers, and directors from continuing such act, practice, or transaction or from doing any acts in furtherance thereof and for the appointment of a receiver or an auditor and such other and further relief as the facts may warrant.
(b) In any proceedings for an injunction, the district attorney or the Attorney General may apply for and be entitled to have issued the court's subpoena requiring:
(1) The immediate appearance of any defendant and that defendant's agents, employees, partners, officers, or directors; and
(2) The production of such documents, books, and records as may appear necessary for the hearing upon the petition for an injunction.
(c) Upon proof of any of the offenses described in this Code section, the court may grant such injunction and appoint a receiver or an auditor and issue such other orders for the protection of purchasers as the facts may warrant.
(a) Except as provided in subsection (b) of this Code section, any person who shall willfully violate any provision of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not more than $1,000.00 or imprisonment not to exceed 12 months, or both.
(b) Any person who shall willfully violate paragraph (2) of subsection (a) of Code Section 44-3-5 or subsection (d) of Code Section 44-3-5 shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not less than one and not more than five years, or both.
(c) Nothing in this article shall limit any statutory or common-law right of the state to punish any person for violation of any provision of any law.
(d) Nothing in this article shall be deemed to prohibit the Attorney General from exercising any powers under Part 2 of Article 15 of Chapter 1 of Title 10 against any person.
(a) Any person who violates any provision of Code Section 44-3-5 shall be liable to the person buying such land. Such buyer may bring an action in any court of competent jurisdiction to recover damages, even if that buyer no longer owns the land, or, upon tender of the land at any time before entry of judgment, to recover the consideration paid, or the fair value thereof at the time the consideration was paid if such consideration was not paid in cash, for the land with interest thereon at the rate of 7 percent per annum from the date of payment down to the date of repayment, together with all taxable court costs and reasonable attorney's fees.
(b) Every person who directly or indirectly controls a person liable under subsection (a) of this Code section, every general partner, executive officer, or director of such person liable under subsection (a) of this Code section, every person occupying a similar status or performing similar functions, and every person who participates in any material way in the sale is liable jointly and severally with and to the same extent as the person liable under subsection (a) of this Code section unless the person whose liability arises under the provisions of this subsection sustains the burden of proof that such person did not know and, in the exercise of reasonable care, could not have known of the existence of the facts by reason of which liability is alleged to exist. There is contribution as in the case of contract among several persons so liable.
(c) No person may bring an action under this Code section more than two years from the date of the contract for sale or sale if there is no contract for sale.
(d) Every cause of action under this article survives the death of any person who might have been a plaintiff or defendant.
(e) Nothing in this article shall limit any statutory or common-law right of any person in any court for any act involving the sale of land.
(f) The owner, publisher, licensee, or operator of any newspaper, magazine, visual or sound radio broadcasting station or network of stations, or the agents or employees of any such owner, publisher, licensee, or operator of such a newspaper, magazine, station or network of stations shall not be liable under this article for any advertising of any subdivision, lot, parcel, or unit in any subdivision carried in any such newspaper or magazine or by any such visual or sound radio broadcasting station or network of stations, nor shall any of them be liable under this article for the contents of any such advertisement, unless the owner, publisher, licensee, or operator has actual knowledge of the falsity thereof.
Except as provided in Code Section 44-3-6, for the purposes of venue for any civil or criminal action under this article, any violation of this article or of any rule, regulation, or order promulgated under this article shall be considered to have been committed in any county in which any act was performed in furtherance of the transaction which violated the article, in the county of any violator's principal place of business, and in any county in which any violator had control or possession of any proceeds of said violation or of any books, records, documents, or other material or objects which were used in furtherance of said violation.
Any developer or its agents shall keep among its business records and make reasonably available for examination to a purchaser or the purchaser's agent the following:
(1) A copy of each item required in Code Section 44-3-3; and
(2) A copy of the sales agreement from each sale relating to the purchase of real property in a subdivision.
Any condition, stipulation, or provision binding any person who enters into a transaction subject to the provisions of this article which waives:
(1) Compliance with any provision of this article or of the rules and regulations promulgated under this article;
(2) Any rights provided by this article or by the rules and regulations promulgated under this article; or
(3) Any defenses arising under this article or under the rules and regulations promulgated under this article
shall be void.
In any action, civil or criminal, where a defense is based upon any exemption provided for in this article, the burden of proving the existence of such exemption shall be upon the party raising such defense.
Prior law exclusively governs all actions, prosecutions, or proceedings which are pending or may be initiated on the basis of facts or circumstances occurring before July 1, 1995, except that no civil actions may be maintained to enforce any liability under prior law unless brought within any period of limitation which applied when the cause of action accrued and, in any event, within two years of July 1, 1995.
This article shall be known and may be cited as the “Georgia Condominium Act.”
As used in this article, the term:
(1) “Additional property” means any property which may be added to an expandable condominium in accordance with the provisions of the declaration and this article.
(2) “Association” means a corporation formed for the purpose of exercising the powers of the association of any condominium created pursuant to this article.
(3) “Board of directors” or “board” means an executive and administrative body, by whatever name denominated, designated in the condominium instruments as the governing body of the association.
(4) “Common elements” means all portions of the condominium other than the units.
(5) “Common expenses” means all expenditures lawfully made or incurred by or on behalf of the association together with all funds lawfully assessed for the creation and maintenance of reserves pursuant to the provisions of the condominium instruments.
(6) “Common profits” means all income collected or accrued by or on behalf of the association other than income derived from assessments pursuant to Code Section 44-3-80.
(7) “Condominium” means the property lawfully submitted to this article by the recordation of condominium instruments pursuant to this article. No property shall be deemed to be a condominium within the meaning of this article unless undivided interests in common elements are vested in the unit owners.
(8) “Condominium instruments” means the declaration and plats and plans recorded pursuant to this article. Any exhibit, schedule, or certification accompanying a condominium instrument and recorded simultaneously therewith shall be deemed an integral part of that condominium instrument. Any amendment or certification of any condominium instrument shall, from the time of the recordation of such amendment or certification, be deemed an integral part of the affected condominium instrument so long as such amendment or certification was made in accordance with this article.
(9) “Condominium unit” means a unit, as defined in paragraph (28) of this Code section, together with the undivided interest in the common elements appertaining to that unit.
(10) “Conversion condominium” means a condominium all or part of which may be used for residential purposes, which condominium contains any building or portion thereof that at any time before the recording of the declaration was occupied wholly or partially by persons other than persons who, at the time of the recording, had contractual rights to acquire one or more units within the condominium. This paragraph shall not apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.
(11) “Convertible space” means a portion of a structure within a condominium, which portion may be converted in accordance with this article into one or more units or common elements, including, but not limited to, limited common elements.
(12) “Court” means the superior court of the county where the condominium or any part thereof is located.
(13) “Declarant” means all owners and lessees of the property who execute the declaration or on whose behalf the declaration is executed; provided, however, that the phrase “owner and lessees,” as used in this Code section and in Code Sections 44-3-72 and 44-3-89, shall not include in his capacity as such any mortgagee, any lienholder, any person having an equitable interest under any contract for the sale or lease of a unit, or any lessee or tenant of a unit. From the time of the recordation of any amendment to the declaration expanding an expandable condominium, all persons who execute that amendment or on whose behalf that amendment is executed shall also come within the definition of “declarant.” Any successor-in-title of any owner or lessee referred to in this paragraph who comes to stand in the same relation to the condominium as his predecessor did shall also come within such definition.
(14) “Declaration” means the recordable instrument containing those matters required by Code Section 44-3-77 and any lawful amendments thereto.
(15) “Expandable condominium” means a condominium to which additional property may be added in accordance with the declaration and this article.
(16) “Foreclosure” means, without limitation, the judicial foreclosure of a mortgage and the exercise of a power of sale contained in any mortgage.
(17) “Identifying number” means one or more letters, numbers, symbols, words, or any combination thereof that identifies only one unit in the condominium.
(18) “Leasehold condominium” means a condominium in all or any portion of which each unit owner owns an estate for years or leasehold estate in his unit or in the property on or within which that unit is situated or both. A condominium including an estate for years in property, or an interest therein, on or within which no units are situated or to be situated shall not be deemed a leasehold condominium within the meaning of this article.
(19) “Limited common element” means a portion of the common elements reserved for the exclusive use of those entitled to the use of one or more, but less than all, of the units.
(19.1) “Master association” means an association of a master condominium.
(19.2) “Master condominium” means a condominium in which the condominium instruments permit one or more of the units to constitute a subcondominium.
(20) “Mortgage” means a mortgage, deed to secure debt, deed of trust, or other instrument conveying a lien upon or security title to property.
(21) “Mortgagee” means the holder of a mortgage.
(22) “Officer” means an officer of the association.
(23) “Permanently assigned limited common element” means a limited common element which cannot be reassigned or which can be reassigned only with the consent of the unit owner or owners of the unit or units to which it is assigned.
(24) “Person” means a natural person, corporation, partnership, association, trust, other entity, or any combination thereof.
(25) “Property” means any real property and any interest in real property, including, without limitation, parcels of air space.
(26) “Record” means to file for record in the office of the clerk of the superior court of all counties in which the condominium or any part thereof is located.
(26.1) “Subassociation” means an association of a subcondominium.
(26.2) “Subcondominium” means the property consisting of a unit of an existing condominium lawfully submitted under this article by the recordation of separate condominium instruments pursuant to this article.
(27) “Submitted property” means the property lawfully submitted to this article by the recordation of condominium instruments pursuant to this article. Additional property shall be deemed to be submitted property upon the expansion of a condominium pursuant to this article.
(27.1) “Subunit” means a unit that constitutes a portion of a subcondominium.
(28) “Unit” means a portion of the condominium intended for any type of independent ownership and use. For the purposes of this article, a convertible space shall also be deemed a unit.
(29) “Unit owner” means one or more persons, including the declarant, who own a condominium unit or, in the case of a leasehold condominium, whose leasehold interest or interests in the condominium extend for the entire balance of the unexpired term or terms.
A condominium shall come into existence upon the recordation of the declaration pursuant to this article and of the plats and plans required by Code Section 44-3-83. The declaration shall be duly executed by or on behalf of all of the owners and lessees of the submitted property.
After the submission of any property to this article, no description of a condominium unit located thereon shall be deemed vague, uncertain, or otherwise insufficient if it sets forth the identifying number of that unit, the name of the condominium, the name of the county or counties in which the condominium is located, and the deed book and page number where the first page of the declaration is recorded. Any such description shall be deemed to include the undivided interest in the common elements appertaining to such unit even if such interest is not stated or referred to in the description.
(a) The declaration and any amendments thereto shall be entitled to recordation if executed in the manner required for recording deeds to real property. All condominium instruments and any amendments and certifications thereto shall set forth the name of the condominium; the name of the county or counties in which the condominium is located; and, except for the declaration itself, the deed book and page number where the first page of the declaration is recorded or the document number assigned to the declaration upon its recordation. All condominium instruments and all amendments and certifications thereto shall be recorded in every county where any portion of the condominium is located. The recordation shall not require the approval of any county or municipal authority or official except as to the manner of execution prescribed by this Code section.
(b) The clerk of superior court shall continue to maintain any legacy condominium plat books, condominium site plan books, condominium plot plan books, or condominium floor plan books that currently exist either in their current form or in electronic format.
(c) All deeds, mortgages, liens, leases, and encumbrances of any kind affecting any condominium unit or duplicate originals thereof or copies thereof certified by the clerk of superior court in whose office the same are first recorded shall be recorded in all counties in which any part of the submitted property is located.
(a) Except to the extent otherwise provided by the condominium instruments:
(1) The terms defined in Code Section 44-3-71 shall be deemed to have the meanings therein specified wherever they appear in the condominium instruments unless the context otherwise requires;
(2) To the extent that walls, floors, or ceilings are designated as the boundaries of the units or of any specified units, all doors and windows therein and all lath, wallboard, plasterboard, plaster, paneling, molding, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces thereof shall be deemed a part of such units; but all other portions of such walls, floors, or ceilings shall be deemed a part of the common elements;
(3) If any chutes, flues, ducts, conduits, wires, bearing walls, bearing columns, or any other apparatus lies partially inside and partially outside of the designated boundaries of a unit, any portions thereof serving only that unit shall be deemed a part of that unit; but any portions thereof serving more than one unit or any portion of the common elements shall be deemed a part of the common elements;
(4) Subject to paragraph (3) of this subsection, all space, interior partitions, and other fixtures and improvements within the boundaries of a unit shall be deemed a part of that unit;
(5) Any shutters, awnings, window boxes, doorsteps, porches, balconies, patios, and any other apparatus designed to serve a single unit shall be deemed a limited common element appertaining to that unit exclusively; and
(6) The requirement of consent to or joinder in any act or instrument by any unit owner shall not be deemed to require the consent to or joinder in such act or instrument by any mortgagee of or the holder of any lien upon such unit owner's condominium unit except to the extent expressly required by this article.
(b) In the event that any allocation of undivided interest in the common elements, votes in the association, or liability for common expenses stated in any deed or mortgage to or of any condominium unit conflicts with the allocations thereof as set forth in the declaration, the declaration shall control.
(c) In the event of any inconsistency between this article and the provisions of any declaration, this article shall control. Unless otherwise provided in the condominium instruments, in the event of any inconsistency between the declaration and the provisions of any bylaws of the association, the declaration shall control.
(d) The condominium instruments shall be construed together and shall be deemed to incorporate one another to the extent that any requirement of this article as to the content of one would be satisfied if any other condominium instrument were incorporated therein by reference.
(e) If any provision, sentence, clause, phrase, or word of any condominium instrument or the application thereof in any circumstances is held invalid, the validity of the remainder of the condominium instrument and of the application of any such provision, sentence, clause, phrase, or word in other circumstances shall not be affected thereby.
Every unit owner and all those entitled to occupy a unit shall comply with all lawful provisions of the condominium instruments. In addition, any unit owner and all those entitled to occupy a unit shall comply with any reasonable rules or regulations adopted by the association pursuant to the condominium instruments which have been provided to the unit owners and with the lawful provisions of bylaws of the association. Any lack of such compliance shall be grounds for an action to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, maintainable by the association or, in any proper case, by one or more aggrieved unit owners, on their own behalf or as a class action. If and to the extent provided in the condominium instruments, the association shall be empowered to impose and assess fines, and suspend temporarily voting rights and the right of use of certain of the common elements in order to enforce such compliance; provided, however, that no such suspension shall deny any unit owner or occupants access to the unit owned or occupied nor cause any hazardous or unsanitary condition to exist. If the voting right of a unit owner has been suspended, then to the extent provided in the condominium instruments, that unit owner's vote shall not count for purposes of establishing a quorum or taking any action which requires a vote of the owners under this article or the condominium instruments. Notwithstanding any other provision of this Code section, to the extent provided in the condominium instruments, water, gas, electricity, heat, and air conditioning services being provided to a unit or unit owner by the association may be terminated for failure to pay assessments and other amounts due pursuant to subsection (a) of Code Section 44-3-109, subject to the suspension standards and notice requirements imposed on the institutional providers providing such services to the condominium development, only after a final judgment or final judgments in excess of a total of $750.00 are obtained in favor of the association from a court of competent jurisdiction. The utility services shall not be required to be restored until the judgment or judgments and any reasonable utility provider charges or other reasonable costs incurred in suspending and restoring such services are paid in full. All common expenses for termination and restoration of any services pursuant to this Code section shall be an assessment and a lien against the unit.
(a) The declaration for every condominium shall contain the following:
(1) The name of the condominium, which name shall include the word “condominium” or be followed by the words “a condominium”;
(2) The name of the county or counties in which the condominium is located;
(3) A legal description by metes and bounds of the submitted property, including any horizontal, upper and lower, boundaries as well as the vertical, lateral, boundaries;
(4) A description or delineation of the boundaries of the units, including any horizontal, upper and lower, boundaries as well as the vertical, lateral, boundaries;
(5) A description or delineation of any limited common elements showing or designating the unit or units to which each is assigned;
(6) A description or delineation of all common elements which may subsequently be assigned as limited common elements together with a statement that they may be so assigned and a description of the method whereby any such assignments shall be made in accordance with Code Section 44-3-82;
(7) The allocation to each unit of an undivided interest in the common elements in accordance with Code Section 44-3-78;
(8) The allocation to each unit of a number of votes in the association in accordance with Code Section 44-3-79;
(9) The allocation to each unit of a share of the liability for common expenses in accordance with Code Section 44-3-80;
(10) Any limitations or restrictions on the powers of the association and the board of directors;
(11) The name and address of the attorney or other person who prepared the declaration;
(12) A statement of any and all restrictions on the general use of the condominium or a statement that there are no such restrictions; and
(13) Such other matters not inconsistent with this article as the declarant deems appropriate.
(b) If the condominium is an expandable condominium, the declaration shall also contain the following:
(1) The explicit reservation of an option or options to expand the condominium;
(2) A time limit or date not exceeding seven years from the recording of the declaration upon which all options to expand the condominium shall expire together with a statement of any circumstances which will terminate any such option prior to the expiration of the time limit so specified; provided, however, that, if the condominium instruments so provide, the unit owners of units to which two-thirds of the votes in the association appertain, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant, may consent to the extension of any such option within one year prior to the date upon which the option would otherwise have expired;
(3) A statement of any other limitations on the option or options or a statement that there are no such limitations;
(4) A legal description by metes and bounds of the additional property, including any horizontal, upper and lower, boundaries as well as the vertical, lateral, boundaries;
(5) A statement as to whether portions of the additional property may be added to the condominium at different times, together with any limitations fixing the boundaries of those portions by legal descriptions setting forth the metes and bounds thereof or regulating the order in which they may be added to the condominium, or a statement that there are no such limitations;
(6) A statement of any limitations as to the location of any improvements that may be made on any portions of the additional property or a statement that there are no such limitations;
(7) A statement of the maximum number of units that may be created on the additional property. If portions of the additional property may be added to the condominium and the boundaries of those portions are fixed in accordance with paragraph (5) of this subsection, the declaration shall also state the maximum number of units that may be created on each such portion added to the condominium. If portions of the additional property may be added to the condominium and the boundaries of those portions are not fixed in accordance with paragraph (5) of this subsection, then the declaration shall also state the maximum average number of units per acre that may be created on any such portion added to the condominium;
(8) With regard to the additional property, a statement of whether any units may be created therein that may not be restricted exclusively to residential use and, if so, a statement of the maximum extent thereof or a limitation as to the extent of such nonresidential use;
(9) A statement of the extent to which any structures erected on any portion of the additional property added to the condominium will be compatible with structures on the submitted property in terms of quality of construction, the principal materials to be used, and architectural style or a statement that no assurances are made in those regards;
(10) A description of all other improvements that will be made on any portion of the additional property added to the condominium, or a statement of any limitations as to what other improvements may be made thereon, or a statement that no assurances are made in that regard;
(11) A statement that any units created on any portion of the additional property added to the condominium will be substantially identical to the units on the submitted property, or a statement of any limitations as to what types of units may be created thereon, or a statement that no assurances are made in that regard;
(12) A description of the declarant's reserved right, if any, to create limited common elements within any portion of the additional property or to designate common elements therein which may subsequently be assigned as limited common elements, in terms of the types, sizes, and maximum number of such limited common elements within each such portion, or a statement that no limitations are placed on that right; and
(13) A statement of a formula, ratio, or other method whereby, upon the expansion of any expandable condominium, there shall be reallocated among the units the undivided interests in the common elements, the votes in the association, and the liability for common expenses.
Plats or plans may be recorded with the declaration of any amendment thereto and identified therein to supplement or provide information required to be furnished pursuant to this subsection; and provided, further, that paragraph (8) of this subsection need not be complied with if none of the units on the submitted property are restricted exclusively to residential use.
(c) If the condominium contains any convertible space, the declaration shall also contain a statement of a formula, ratio, or other method whereby, upon the conversion of all or any portion of a convertible space, there shall be allocated among the units created therefrom such undivided interest in the common elements, such number of votes in the association, and such liability for common expenses as previously pertained to such convertible space.
(d) If the condominium is a leasehold condominium, with respect to any ground lease, other lease, or other instrument creating the estate for years, the expiration or termination of which may terminate or reduce the condominium, the declaration shall set forth the county or counties wherein the same are recorded and the deed book and page number where the first page of each such lease or other instrument is recorded. The declaration shall also contain the following:
(1) The date upon which such leasehold or estate for years is due to expire;
(2) A statement of whether any property will be owned by the unit owners in fee simple and, if so, a legal description by metes and bounds of any such property. With respect to any improvements owned by the unit owners in fee simple, the declaration shall contain a statement of any rights the unit owners shall have to remove the improvements after the expiration or termination of the leasehold or estate for years involved or a statement that they shall have no such rights;
(3) A statement of the name and address of the person or persons to whom payments of rent must be made by the unit owners unless such rent is collected from the unit owners as a part of the common expenses; and
(4) A statement of the share of liability for payments under any such lease or other instrument which are chargeable against each unit.
(e) Whenever this Code section requires a legal description by metes and bounds of submitted property or additional property, such requirement shall be deemed to include a requirement of a legally sufficient description of any easements that are submitted to this article or that may be added to the condominium, as the case may be. In the case of any such easement, the declaration shall contain the following:
(1) A description of the permitted use or uses;
(2) If the benefit of the easement does not inure to all units and their lawful occupants, a statement of the relevant restrictions and limitations on utilization; and
(3) If any person other than those entitled to occupy any unit may use the easement, a statement of the rights of others to such use.
Notwithstanding any other provision of this subsection, the foregoing requirements may be satisfied by attaching a true copy of any such easement to the declaration.
(f) Whenever this Code section requires a legal description by metes and bounds of submitted property or additional property, such requirement shall be deemed to include a separate legal description by metes and bounds of all property in which the unit owners collectively shall or may be tenants in common or joint tenants with any other persons. No units shall be situated on any such property, however, and the declaration shall describe the nature of the unit owners' estate therein. No such property shall be shown on the same plat or plats showing other portions of the condominium but shall be shown instead on separate plats unless such property is specifically shown and labeled as being owned subject to such a tenancy.
(g) Wherever this article requires a statement of a method for allocation or reallocation of undivided interests in the common elements, votes in the association, and the liability for common expenses, such method shall be so related to the physical characteristics of the units affected or otherwise so stated as to enable any person to determine the interest, vote, or share in such matters pertaining to any particular unit upon such allocation or reallocation. Certain spaces within the units, including, without limitation, attic, basement, and garage space, may but need not be omitted from such calculation or partially discounted by the use of a ratio so long as the same basis of calculation is employed for all units in the condominium. In the event that the declaration allocates or provides for the allocation to any unit of a different share of undivided interests in common elements than is allocated for liability for common expenses, such difference shall be based upon a good faith estimate of the declarant regarding the approximate relative maintenance or other costs occasioning such disparity, and the basis of such determination shall be stated in the declaration; provided, however, that no unit owner or other person may require any reallocation on account of any disparity between actual costs and the determination reflected in the declaration. Subject to the foregoing sentence of this subsection, nothing contained in this article shall be construed to require that the proportions of undivided interest in the common elements, of votes in the association, or of liability for common expenses assigned and allocated to each unit be equal, it being intended that such proportions may be independent.
(a) The declaration shall allocate to each unit depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83 an undivided interest in the common elements. Such allocation may be by percentage, fraction, formula, or any other method which indicates the relative undivided interests in the common elements. If an equal undivided interest in the common elements is allocated to each unit, the declaration may merely so state.
(b) All of the undivided interests in the common elements shall be allocated to the units created by the declaration and shall be subject to reallocation as provided in this article.
(c) If the undivided interests allocated are other than equal, the undivided interest allocated to each unit shall be reflected by a table or provision in the declaration or by an exhibit or schedule accompanying the declaration and recorded simultaneously therewith identifying the units, listing them serially or grouping them together in the case of units to which identical undivided interests are allocated, and setting forth the fraction, percentage, or other statement of undivided interest in the common elements allocated thereto.
(d) Except to the extent otherwise expressly provided by this article, the undivided interest in the common elements allocated to any unit shall not be altered; and any purported transfer, encumbrance, or other disposition of that interest without the unit to which it pertains shall be void.
(e) The common elements shall not be subject to any action for partition except as provided in Code Sections 44-3-98 and 44-3-99.
(f) No undivided interest in the common elements shall be allocated to any unit unless such unit is depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83.
(a) The declaration shall allocate a number of votes in the association to each unit depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83. The allocation of such votes may be by percentage, fraction, formula, or any other method which indicates the relative voting power allocated to each unit. If an equal vote is allocated to each unit, the declaration may merely so state. All of the votes in the association shall be allocated among the units depicted on such plats or plans and shall be subject to reallocation as provided in this article.
(b) Since a unit owner may be more than one person, if only one of those persons is present at a meeting of the association or is voting by proxy, ballot, or written consent, that person shall be entitled to cast the votes pertaining to that unit. However, if more than one of those persons is present or executes a proxy, ballot, or written consent, the vote pertaining to that unit shall be cast only in accordance with their unanimous agreement unless the condominium instruments expressly provide otherwise; and such consent shall be conclusively presumed if any one of them purports to cast the votes pertaining to that unit without protest being made immediately by any of the others to the person presiding over the meeting or vote.
(c) The votes pertaining to any unit may, and, in the case of any unit owner not a natural person or persons, shall, be cast pursuant to a proxy or proxies duly executed by or on behalf of the unit owner or, in cases where the unit owner is more than one person, by or on behalf of the joint owners of the unit. No such proxy shall be revocable except as provided in Code Section 14-2-722 or 14-3-724 or by written notice delivered to the association by the unit owner or by any joint owners of a unit. Any proxy shall be void if it is not dated or if it purports to be revocable without such notice.
(d) Except in the case of any condominium of which no part is restricted exclusively to residential use, if 50 percent or more of the votes in the association pertain to 25 percent or less of the condominium units, then in any case where a majority vote is required by the condominium instruments or by this article the requirement for such a majority shall be deemed to include, in addition to the specified majority of the votes, assent by the unit owners of a like majority of the condominium units.
(e) Anything in this Code section to the contrary notwithstanding, no votes in the association shall be deemed to pertain to any condominium unit during such time as the unit owner thereof is the association nor shall any vote be allocated to any condominium unit unless the condominium unit is depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83. Except to the extent otherwise expressly provided or permitted by this article, the votes allocated to any condominium unit shall not be altered.
(a) Except to the extent that the condominium instruments provide otherwise, any common expenses associated with the maintenance, repair, renovation, restoration, or replacement of any limited common element shall be specially assessed against the condominium unit to which that limited common element was assigned at the time the expenses were made or incurred; however, if any limited common element was assigned at that time to more than one unit, the common expenses shall be specifically assessed against each condominium unit equally so that the total of the special assessments equals the total of the expenses.
(b) To the extent that the condominium instruments expressly so provide:
(1) Any other common expenses benefiting less than all of the units shall be specially assessed equitably among all of the condominium units so benefited;
(2) Any other common expenses occasioned by the conduct of less than all of those entitled to occupy all of the units or by the licensees or invitees of any such unit or units shall be specially assessed against the condominium unit or units, the conduct of any occupant, licensee, or invitee of which occasioned any such common expenses;
(3) Any other common expenses significantly disproportionately benefiting all of the units shall be assessed equitably among all of the condominium units; and
(4) Other than for limited common elements expressly designated as such in the condominium instruments and assigned to fewer than all units, nothing contained in paragraph (1) or (3) of this subsection shall permit an association to specially or disproportionately allocate common expenses for periodic maintenance, repair, and replacement of any portion of the common elements or the units which the association has the obligation to maintain, repair, or replace.
(c) The amount of all common expenses not specially assessed pursuant to subsection (a) or (b) of this Code section, less the amount of all undistributed and unreserved common profits, shall be assessed against the condominium units in accordance with the allocation of liability for common expenses set forth in the declaration. The allocation may be by percentage, fraction, formula, or any other method which indicates the relative liabilities for common expenses. If an equal liability for common expenses is allocated to each unit, the declaration may merely so state. The entire liability for common expenses shall be allocated among the units depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83 and shall be subject to reallocation as provided in this article. Except to the extent otherwise expressly provided or permitted by this article, the allocations of the liability shall not be altered; provided, however, that no reallocation shall affect any assessment or installation thereof becoming due and payable prior to reallocation. The assessments shall be made by the association annually or more often if the condominium instruments so provide and shall be payable in the manner determined by the association. Notwithstanding any unequal allocation of liabilities for common expenses pursuant to this subsection, this provision shall not preclude the association from levying charges equally among units for services or items provided to owners upon request, or which provide proportionate or uniform benefit to the units, including, but not limited to, uniform charges for pool keys or other common element entry devices.
(d)(1) The declarant shall pay for all common expenses until the first common expense assessment is due from any unit owner. Thereafter, no unit owner other than the association shall be exempted from any liability for any assessment under this Code section or under any condominium instrument for any reason whatsoever, including, without limitation, abandonment, nonuse, or waiver of the use or enjoyment of his or her unit or any part of the common elements.
(2) Notwithstanding paragraph (1) of this subsection, if authorized by the declaration, a declarant who is offering units for sale may elect to be excused from payment of assessments assessed pursuant to subsection (c) of this Code section against those unsold and unoccupied units for a stated period of time after the original declaration is recorded, not to exceed 24 months after the date the original declaration is recorded; provided, however, that as to assessments assessed pursuant to subsection (c) of this Code section, the declarant must pay common expenses incurred during such period which exceed the amounts assessed against other unit owners in the same condominium. During any period in which the declarant is excused from payment of assessments assessed pursuant to subsection (c) of this Code section:
(A) No capital contributions, start-up funds, initiation fees, or contributions to capital reserve accounts which are receivable from unit purchasers or unit owners and payable to the association at closing may be used for payment of common expenses;
(B) No portion of the payment of assessments collected from owners intended to be utilized for reserves for deferred maintenance, reserves for depreciation, or other reserves, as shown on the operating budget for the condominium, may be used for payment of common expenses; and
(C) No prepayments of assessments made by owners shall be used for the payment of common expenses prior to the time the assessments would otherwise be due.
(3) If during the period that the declarant is excused from payment of assessments as provided in paragraph (2) of this subsection common expenses are incurred resulting from a casualty which is not covered by proceeds from insurance maintained by the association, such common expenses shall be assessed against all unit owners owning units on the date of such casualty, and their respective successors and assigns, including the declarant with respect to units owned by the declarant. In the event of such an assessment, all units shall be assessed in accordance with the allocation of the liability for common expenses set forth in the declaration as provided in subsection (c) of this Code section.
(4) During any such time as the declarant has the right to control the association pursuant to Code Section 44-3-101, any capital contributions, start-up funds, initiation fees, or contributions to capital reserve accounts which are receivable from unit purchasers or unit owners and payable to the association at closing and any portion of the payment of assessments collected from owners intended to be utilized for reserves for deferred maintenance, reserves for depreciation, or other reserves, as shown on the operating budget for the condominium, shall be deposited into one or more separate reserve accounts and shall not be used to pay for any common expenses, without the agreement of the unit owners of units to which two-thirds of the votes in the association pertain, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant. No waiver of the right of any unit owner to grant or withhold consent to such agreement shall be valid.
(e) Unless otherwise provided in the condominium instruments and except as provided in subsection (f) of this Code section, the grantee in a conveyance of a condominium unit shall be jointly and severally liable with the grantor thereof for all unpaid assessments against the latter up to the time of the conveyance without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee therefor; provided, however, that, if the grantor or grantee shall request a statement from the association as provided in Code Section 44-3-109, such grantee and his successors, successors-in-title, and assigns shall not be liable for nor shall the condominium unit conveyed be subject to a lien for any unpaid assessments against such grantor in excess of any amount set forth in the statement.
(f) In the event that the holder of a first priority mortgage or a secondary purchase money mortgage of record, provided that neither the grantee nor any successor grantee on the secondary purchase money mortgage is the seller of the unit, or any other person acquires title to any condominium unit as a result of foreclosure of any such mortgage, such holder or other person and successors, successors-in-title, and assigns shall not be liable for nor shall the condominium unit be subject to a lien for any assessment under this Code section or under any condominium instrument chargeable to the condominium unit on account of any period prior to the acquisition of title; provided, however, that the unpaid share of an assessment or assessments shall be deemed to be common expenses collectable from all of the unit owners, including such holder or other person and successors, successors-in-title, and assigns.
(g) A condominium instrument recorded on or after July 1, 2015, shall not authorize the board of directors to impose:
(1) Except as provided in subsections (a) and (b) of this Code section and subsections (a) and (b) of Code Section 44-3-109, a special assessment fee per unit in excess of one-sixth of the annual common expense assessment for the unit levied pursuant to subsection (c) of this Code section per fiscal year without the approval of a majority of the unit owners; or
(2) A monthly maintenance fee increase in excess of the percentage equal to the annual rate of inflation as measured by the Consumer Price Index for All Urban Consumers for the immediately preceding 12 month period may be disapproved by unit owners holding a majority of the association vote.
(a) Interests in the common elements shall not be allocated to any units to be created within any additional property until plats or plans depicting the same are recorded pursuant to subsection (c) of Code Section 44-3-83. Upon the submission of any additional property, the declarant shall execute and record an amendment to the declaration reallocating undivided interests in the common elements, votes in the association, and liabilities for common expenses in the manner provided in the declaration.
(b) If all of a convertible space is converted into common elements, including, without limitation, limited common elements, the undivided interest in the common elements pertaining to such convertible space shall then pertain to the remaining units and shall be allocated among them in proportion to their undivided interests in the common elements. In the case of the conversion of all or any portion of any convertible space into one or more units or common elements, including, without limitation, limited common elements, the undivided interests in the common elements, the votes in the association, and the liability for common expenses shall be reallocated in the manner provided in the declaration. The declarant shall immediately prepare, execute, and record an amendment to the declaration effecting the reallocation of undivided interests produced thereby.
(c) In the case of a leasehold condominium, upon the expiration or termination of any leasehold or estate for years with respect to any land upon or within which any unit exists, every such unit together with all common elements located upon or within such leasehold or estate for years shall be deemed to have been withdrawn from the condominium unless the declaration provides for the termination of the condominium in such event. The undivided interest in the common elements pertaining to any unit thereby withdrawn from the condominium shall then pertain to the remaining units and shall be allocated among them in proportion to their undivided interests in the common elements. The association shall immediately prepare, execute, and record an amendment to the declaration effecting the reallocation of undivided interests produced thereby. In the case of the reduction of a condominium on account of the expiration or termination of a leasehold or estate for years, all votes attributable to any unit located upon such property immediately prior to such reduction shall thereby be eliminated; in addition, the liability for common expenses pertaining to any such unit shall be allocated to the remaining units in proportion to their relative liabilities for common expenses.
(a) All assignments and reassignments of limited common elements shall be made or provided for in the condominium instruments. No limited common element shall be assigned or reassigned except in accordance with this article. No amendment to any condominium instrument shall alter any rights or obligations with respect to any limited common element without the consent of all unit owners whose use of the limited common element is or may be directly affected by the assignment or reassignment, as evidenced by their execution of the amendment, except to the extent that the condominium instruments expressly provided otherwise prior to or simultaneously with the first assignment of the limited common element.
(b) Unless expressly prohibited by the condominium instruments, a limited common element may be reassigned upon written application to the association by the owners of units to which the limited common element appertains and the owners of units to which the limited common element is being reassigned. The association shall immediately prepare and execute an amendment to the declaration reassigning all rights and obligations with respect to the limited common element involved. Such amendment shall be delivered immediately to the owners of the units to which the limited common element appertains and the owners of units to which the limited common element is being reassigned and upon payment by them of all reasonable costs for the preparation, execution, and recordation thereof. The amendment shall become effective when the association and the owners of the units to which the limited common element appertains and the owners of units to which the limited common element is being reassigned have executed and recorded the same. No vote of the unit owners shall be necessary for the amendment provided in this Code section to be executed by the association.
(c) A common element not previously assigned as a limited common element shall be so assigned only pursuant to the declaration. The amendment to the declaration making such an assignment shall be prepared and executed by the association. The amendment shall be delivered to the unit owner or owners to whose unit the assignment is being made upon payment by them of all reasonable costs for the preparation, execution, and recordation thereof. The amendment shall become effective after execution by the association and such unit owner or owners and recordation, and the recordation thereof shall be conclusive evidence that the method prescribed pursuant to the declaration was adhered to. Unless otherwise required by the condominium instruments, no vote of the unit owners shall be necessary for the amendment provided in this Code section to be executed by the association.
(a) Prior to the first conveyance of a condominium unit, there shall be recorded one or more plats of survey showing the location and dimensions of the submitted property; the location and dimensions of all structural improvements located on any portion of the submitted property; the intended location and dimensions of all contemplated structural improvements committed to be provided by the declaration on any portion of the submitted property; and, to the extent feasible, the location and dimensions of all easements appurtenant to the submitted property or otherwise submitted to this article as part of the common elements. With respect to all such structural improvements, the plats shall indicate which, if any, have not been begun by use of the phrase “NOT YET BEGUN.” No structural improvement which contains or constitutes all or part of any unit or units and which is located on any portion of the submitted property shall be commenced on any portion of the submitted property after the recording of the plats. The declarant shall complete all structural improvements depicted on the plats, subject only to such limitations, if any, as may be expressly stated in the declaration with respect to those labeled “NOT YET BEGUN” on the plats, provided that, within six months after written notice from the association, the declarant shall be obligated to complete within a reasonable time every structural improvement actually commenced on the submitted property, notwithstanding any provision of the declaration, unless the declarant removes within a reasonable time all portions of any such structural improvement and restores the surface of the land affected thereby to substantially the same condition as that which existed prior to commencement of any such structural improvement; and provided, further, that nothing contained in this sentence shall exempt the declarant from any contractual liability to complete any such structural improvement. If the submitted property consists of noncontiguous parcels, the plats shall indicate the approximate distances between such parcels unless such information is disclosed in the declaration. If, with respect to any portion or portions, but less than all, of the submitted property, the unit owners are to own only a leasehold or estate for years, the plats shall show the location and dimensions of any such portion or portions and shall label each such portion by use of the phrase “LEASED LAND.” To the extent feasible, the plats shall show all easements to which the submitted property or any portion thereof is subject. The plats shall also show all encroachments by or on any operation of the submitted property. In the case of any units which have vertical boundaries lying wholly or partially outside of structures for which plans pursuant to subsection (b) of this Code section are recorded, the plats shall show the location and dimensions of the vertical boundaries to the extent that they are not shown on the plans; and the units or portions thereof thus depicted shall bear their identifying numbers. Each plat shall be certified as to its accuracy and compliance with this subsection by a registered land surveyor. The specification within this subsection of items that shall be shown on the plats shall not be construed to mean that the plats shall not also show all other items customarily shown or required by law to be shown for land title surveys.
(b) There shall be recorded prior to the first conveyance of a condominium unit:
(1) Plans which have been prepared, signed, and sealed by a registered architect or registered engineer of every structure which contains or constitutes all or part of any unit or units located on or within any portion of the submitted property, which plans shall show:
(A) The location and dimensions of the exterior walls and roof of such structures;
(B) The walls, partitions, floors, and ceilings as constitute the horizontal boundaries, if any, and the vertical boundaries of each unit, including convertible space, to the extent that such boundaries lie within or coincide with the boundaries of such structures; and
(C) The identifying numbers of all units or portions thereof depicted on the plans; and
(2) A certification by such architect or engineer to the effect that he has visited the site and viewed the property and that, to the best of his knowledge, information, and belief:
(A) The exterior walls and roof of each structure are in place as shown on the plans; and
(B) Such walls, partitions, floors, and ceilings, to the extent shown on said plans, as constitute the horizontal boundaries, if any, and the vertical boundaries of each unit, including convertible space, have been sufficiently constructed so as to establish clearly the physical boundaries of such unit.
In addition, each convertible space depicted in the plans shall be labeled as such by use of the phrase “CONVERTIBLE SPACE.” Unless the condominium instruments expressly provide otherwise, it shall be presumed that, in the case of any unit not wholly contained within or constituting one or more of the structures, the horizontal boundaries extend, in the case of each unit, at the same elevation with regard to any part of such unit lying outside of such structures, subject to the following exception: in the case of any unit which does not lie over any other unit other than basement units, it shall be presumed that the lower horizontal boundary, if any, of that unit lies at the level of the ground with regard to any part of that unit lying outside of the structures. This subsection shall apply to any condominium created on or after July 1, 1980, or to the expansion of any such condominium.
(b.1) There shall be recorded prior to the first conveyance of a condominium unit plans of every structure which contains or constitutes all or part of any unit or units located on or within any portion of the submitted property and a certification by a registered architect or registered engineer to the effect that he has visited the site and viewed the property and that, to the best of his knowledge, information, and belief:
(1) The foundation, structural members, exterior walls, and roof of each such structure are complete and in place as shown on the plans;
(2) The walls, partitions, floors, and ceilings, to the extent shown on the plans, as constituting or coinciding with the vertical and horizontal boundaries of each unit, including convertible space, within each such structure, are sufficiently complete and in place to establish clearly the physical boundaries of such unit and that such physical boundaries are as shown on the plans; and
(3) Each such structure, to the extent of its stage of completion at that time, is constructed substantially in accordance with such plans.
The plans shall show the location and dimensions of the horizontal boundaries, if any, and the vertical boundaries of each unit to the extent that such boundaries lie within or coincide with the boundaries of such structures, and the units, or portions thereof, thus depicted shall bear their identifying numbers. In addition, each convertible space depicted in the plans shall be labeled as such by use of the phrase “CONVERTIBLE SPACE.” Unless the condominium instruments expressly provide otherwise, it shall be presumed that, in the case of any unit not wholly contained within or constituting one or more of the structures, the horizontal boundaries extend, in the case of each unit, at the same elevation with regard to any part of such unit lying outside of such structures, subject to the following exception: in the case of any unit which does not lie over any other unit other than basement units, it shall be presumed that the lower horizontal boundary, if any, of that unit lies at the level of the ground with regard to any part of that unit lying outside of the structures. This subsection shall apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.
(c) Prior to the first conveyance of a condominium unit located on any portion of any additional property being or having been added to an expandable condominium, there shall be recorded new plats of survey conforming to the requirements of subsection (a) of this Code section and, with regard to any structures on the property being or having been added, plans conforming to the requirements of subsection (b) of this Code section or certifications, conforming to the certification requirements of subsection (b) of this Code section, of plans previously recorded pursuant to Code Section 44-3-84.
(d) When converting all or any portion of any convertible space into one or more units or limited common elements, the declarant shall record, with regard to the structure or portion thereof constituting that convertible space, plans showing the location and dimensions of the horizontal boundaries, if any, and the vertical boundaries of each unit formed out of such space. The plans shall be certified by a registered architect or registered engineer in accordance with the certification requirements of subsection (b) of this Code section.
(e) When any portion of the submitted property is withdrawn, there shall be recorded a plat or plats showing the portion of the submitted property withdrawn and the remaining submitted property, which plat or plats shall be certified as provided in subsection (a) of this Code section.
(f) Except for a unit that is an individual residential dwelling intended for single-family occupancy, nothing in this Code section shall require plans for a unit when the boundaries of the unit are not designated by walls, floors, ceilings, or other physical structures, provided that the boundaries of the unit are depicted on a plat of survey prepared in accordance with subsection (a) of this Code section.
(g) Nothing in this Code section shall require a separate plat of survey for a subcondominium.
Plans previously recorded pursuant to subsection (b) of Code Section 44-3-77 may be used in lieu of new plans to satisfy in whole or in part the requirements of Code Section 44-3-89 if certifications thereof are recorded by the declarant in accordance with subsection (c) of Code Section 44-3-83.
(a) The purpose of this Code section is to protect the unit owners, except in cases of willful and intentional misconduct by them or their agents or employees, and not to relieve the declarant or any contractor, subcontractor, or materialman of any liability which any of them may have by reason of any failure to adhere to the plats or plans.
(b) To the extent that any unit or common element encroaches on any other unit or common element, whether by reason of any deviation from the plats or plans in the construction, repair, renovation, restoration, or repair of any improvement or by reason of the settling or shifting of any land or improvement, a valid easement for such encroachment shall exist.
(c) The declarant and his duly authorized agents, representatives, and employees shall have an easement for the maintenance of sales offices and model units on the submitted property so long as the declarant owns any condominium unit primarily for the purpose of sale.
(d) Subject to any restrictions and limitations which the condominium instruments may specify, the declarant shall have a transferable easement on and over the common elements for the purpose of making improvements contemplated by the condominium instruments on the submitted property and any additional property and for the purpose of doing all things reasonably necessary and proper in connection therewith.
(e) This Code section shall not be construed so as to prohibit the reservation to the declarant of other easements by means of the condominium instruments or otherwise.
(f) To the extent that damage is inflicted on any part of the condominium by the declarant or by any contractor, subcontractor, or materialman utilizing the easements reserved by the condominium instruments to the declarant or created by this Code section, the declarant together with the person or persons causing the damage shall be jointly and severally liable for the prompt repair thereof and for the restoration of the same to a condition compatible with the remainder of the condominium.
(a) As used in this Code section, the term “lessor” means any lessor, sublessor, or grantor of an estate for years.
(b) In the case of any leasehold condominium:
(1) After the recording of the declaration, no lessor who executed the declaration and no successor-in-interest to the lessor shall have any right or power to terminate all or any part of the leasehold interest of any unit owner so long as the condominium shall exist;
(2) In the event that any such lessor shall acquire title to or any other interest in any unit by any method whatsoever, the undivided interest thereby acquired by the lessor in the common elements shall not be merged with the lessor's underlying interest in the submitted property; but the two estates shall remain separate and divided so long as the condominium shall exist;
(3) If provided for in the condominium instruments, the obligation of each unit owner to pay rents and any other amounts under any lease from any lessor shall be secured by a lien upon the condominium unit of the unit owner. The lien shall be prior to all other liens and encumbrances on that condominium unit except liens for ad valorem taxes; and any other lien or encumbrance which the condominium instruments provide shall be superior thereto. The lien shall secure all costs incurred, including, without limitation, reasonable attorney's fees, in connection with the foreclosure thereof and may be foreclosed by action, judgment, and foreclosure in the same manner as is provided for any other lien for the improvement of real property;
(4) Unless otherwise provided in the condominium instruments and except as provided in paragraph (5) of this Code section, no unit owner shall be obligated to pay any amount in excess of the rents due and payable under any lease multiplied by the percentage or other proportion of the unit owner's liability for the rents as set forth in the declaration;
(5) Unless otherwise provided in the condominium instruments, no lessor shall be entitled to require performance by any unit owner of any covenant of any such lease in any form other than by the payment of money by the unit owner; provided, however, that, in the event of any default under any lease other than default in the payment of money, the lessor shall be entitled to perform any defaulted covenant and charge all reasonable costs incurred in connection with performance, including, without limitation, reasonable attorney's fees, against the unit owners in proportion to their liability for the rents, which costs shall be considered rent for purposes of the lien provided for in paragraph (3) of this Code section; and
(6) Except as limited in this Code section, in the condominium instruments, or by law, any lessor shall have all rights and powers provided by law or by his lease.
(a) The declarant of a conversion condominium shall deliver notice of the conversion to each tenant in possession of a unit which is subject to this article. The notice must be delivered at least 120 days before the declarant will require the tenant to vacate the unit. The notice must set forth generally the rights of tenants under this Code section. The tenant may not be required by the declarant to vacate the unit at any time during the 120 day period except by reason of nonpayment of rent, waste, or conduct which disturbs other tenants' peaceful enjoyment of the premises, and the terms of the tenancy may not be altered during said period; provided, however, that any notice which, under the terms of such tenancy, is required to be given to prevent the automatic renewal or extension of the term of such tenancy may be given during said period. Failure of the declarant to give notice as required by this Code section shall constitute a defense to an action by the declarant for possession initiated less than 120 days after proper delivery of such a notice.
(b) Within 60 days after delivery of the notice described in subsection (a) of this Code section, the declarant shall deliver to the tenant an offer to convey the unit to the tenant at a specified price and on specified terms. If the tenant fails to deliver to the declarant acceptance of the offer within 60 days after delivery of the offer to the tenant, the declarant may not offer to convey the unit, during the 120 days following the date on which delivery is made of the offer to convey to the tenant, at a price or on terms more favorable to the offeree than the price or terms offered to the tenant, without first delivering the same offer to the tenant, who shall have at least ten days within which to deliver to the declarant acceptance of such offer.
(c) Notices and offers required or permitted to be delivered to a tenant by subsections (a) and (b) of this Code section may be hand delivered to the tenant, hand delivered to the unit, or posted in the United States mail, postage prepaid, or sent by statutory overnight delivery, addressed to the tenant at the address of the unit. Acceptances permitted to be delivered to a declarant by subsection (b) of this Code section may be hand delivered to the declarant, hand delivered to an authorized representative of the declarant, or posted in the United States mail, postage prepaid, addressed to the declarant at the address specified in the offer made by the declarant. Any notices, offers, or acceptances sent by registered or certified mail or statutory overnight delivery, return receipt requested, shall be presumed conclusively to have been delivered when posted in the United States mail or delivered to the commercial delivery company, postage and fees prepaid, addressed as provided in this subsection, in which event the postmark date or date of receipt by the commercial delivery company of any such registered or certified mail or statutory overnight delivery or any receipt related thereto shall be the date of delivery for purposes of this Code section.
(d) Subsections (a) and (b) of this Code section shall not apply to any unit in a conversion condominium if the boundaries of the unit do not substantially conform to the boundaries of the unit before conversion. Subsections (a) and (b) of this Code section shall apply only to tenants who are not in default under valid and subsisting leases with the declarant or a predecessor in title of the declarant and who are in possession of and are actually occupying for residential purposes units within the conversion condominium both at the time of recording of the declaration and at the time the notice provided for in subsection (a) of this Code section are delivered.
(e) Prior to or simultaneously with delivery of the offer of sale of a unit to a tenant as provided in subsection (b) of this Code section, the declarant shall deliver to the tenant the items required to be furnished to a prospective purchaser by subsection (b) of Code Section 44-3-111.
(f) If a declarant conveys a unit to a purchaser in violation of subsection (b) of this Code section, recordation of the deed conveying the unit shall extinguish any right a tenant may have under subsection (b) of this Code section to purchase the unit but shall not affect any rights of any person to recover damages from the declarant for a violation of subsection (b) of this Code section.
(g) If the notice of conversion should specify a date by which the unit must be vacated, the notice will also constitute demand for possession pursuant to Code Section 44-7-50.
(h) Nothing in this Code section permits termination of a lease by a declarant in violation of its terms.
(i) The rights and obligations of the declarant and the tenant during any period of extended occupancy by the tenant pursuant to subsection (a) of this Code section shall be the same as the rights and obligations of said persons prior to any such period of extended occupancy.
(j) This Code section shall not apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.
(a) With the consent of the mortgagees thereof, the declarant may convert all or any portion of any convertible space into one or more units or common elements, including, without limitation, limited common elements, subject to any restrictions and limitations which the condominium instruments may specify. Any conversion shall be deemed to have occurred at the time of the recordation of appropriate instruments pursuant to subsection (b) of this Code section and subsection (d) of Code Section 44-3-83.
(b) The declarant and all mortgagees of the convertible space shall execute and the declarant shall record an amendment to the declaration effecting the conversion. The amendment shall assign an identifying number to each unit formed out of a convertible space and shall allocate among the unit or units and the remaining convertible space, if any, the undivided interest in the common elements, the number of votes in the association, and the share of the liability for future common expenses pertaining to the convertible space immediately prior to the conversion. All sums assessed against a convertible space prior to its conversion may be reallocated by the amendment to the units and the remaining convertible space, if any. In the event that no reallocation is effected, however, the lien for the assessments shall continue as to all of the space notwithstanding the conversion. The amendment shall describe or delineate the limited common elements, if any, formed out of the convertible space and shall indicate the unit or units to which each is assigned or provide a method for such assignment.
(c) Any convertible space not converted in accordance with this Code section or any portion or portions thereof not so converted shall be treated for all purposes as a single unit unless and until it is so converted; and this article shall be deemed applicable to any space or portion or portions thereof as though the same were a unit.
(a) No condominium shall be expanded except in accordance with the provisions of the declaration and this article.
(b) Any expansion shall be deemed to have occurred at the time of the recordation of plats or plans pursuant to subsection (c) of Code Section 44-3-83 and an amendment to the declaration effecting the expansion duly executed by the declarant, all other owners or lessees of the additional property being added to the condominium, and all mortgages of the additional property being added to the condominium. The amendment shall contain a legal description by metes and bounds of the additional property being added to the condominium and shall reallocate undivided interests in the common elements, votes in the association, and liabilities for future common expenses all in accordance with the provisions of the declaration.
(c) Notwithstanding any other provision of this article, a condominium may be expanded by the association at any time after the declarant's right to expand the condominium has expired, provided that the unit owners of units to which two-thirds of the votes in the association appertain, or such higher amount as may be required by the declaration, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant, consent to an amendment to the governing documents expanding the condominium under the same terms and conditions as set forth in an explicit reservation of an option or options to expand the condominium contained in the condominium instruments as required by subsection (b) of Code Section 44-3-77; and provided, further, that such explicit reservation existed within the first seven years of the recording of the governing documents. The amendment shall contain a legal description by metes and bounds of the additional property being added to the condominium and shall reallocate undivided interests in the common elements, votes in the association, and liabilities for future common expenses all in accordance with the provisions of the declaration. The amendment shall be executed by all owners or lessees of the additional property being added to the condominium and all mortgagees of the additional property being added to the condominium. Additionally, the agreement of the required majority of unit owners to the amendment shall be evidenced by their execution of the amendment. In the alternative, the sworn statement of the president, any vice president, or the secretary of the association attached to or incorporated in an amendment executed by the association, which sworn statement states unequivocally that agreement of the required majority was otherwise lawfully obtained and that any notices required under this article were properly given, shall be sufficient to evidence the required agreement.
(a) Except to the extent prohibited by the condominium instruments and subject to any restrictions and limitations specified therein, any unit owner may make any improvements or alterations within his unit that do not materially impair the structural integrity of any structure or otherwise materially lessen the support of any portion of the condominium. No unit owner shall do anything which would change the exterior appearance of his unit or of any other portion of the condominium except to such extent and subject to any conditions which the condominium instruments may specify.
(b) If a unit owner acquires an adjoining unit, the unit owner shall have the right to remove all or any part of any intervening partition or to create doorways or other apertures therein, notwithstanding the fact that the partition may in whole or in part be a common element, so long as no portion of any bearing wall or bearing column is materially weakened or removed and no portion of any common elements other than that partition, and other than any chutes, flues, ducts, conduits, wires, or other apparatus contained in the partition which must be relocated by the unit owner if they serve any other part of the condominium, is damaged, destroyed, or endangered. Alterations permitted by this Code section shall not be deemed an alteration of boundaries within the meaning of Code Section 44-3-91.
(a) If the condominium instruments expressly permit the relocation of boundaries between adjoining units, the boundaries between those units may be relocated in accordance with this Code section and any restrictions and limitations which the condominium instruments may specify.
(b) If the unit owners of adjoining units whose respective boundaries may be relocated desire to relocate those boundaries, the association shall, upon written application of the unit owners and the written consent of the mortgagees of the units involved, immediately prepare and execute appropriate instruments pursuant to subsections (c) and (d) of this Code section. No vote of the unit owners shall be necessary for the amendments provided in this Code section to be executed by the association.
(c) An amendment to the declaration shall identify the units involved and shall state that the boundaries between those units are being relocated by agreement of the unit owners thereof. The unit owners of the units involved shall specify in their written application that there shall be no such reallocation or shall specify reallocations between the units involved of the aggregate undivided interest in the common elements, votes in the association, and liabilities for common expenses, or any one or more thereof, pertaining to those units. The amendment to the declaration shall reflect such reallocations or the absence thereof if deemed reasonable by the board of directors. If the reallocations specified by the unit owners of the units involved or the absence thereof is deemed unreasonable by the board of directors, it shall so notify such unit owners and permit them to amend their written application so as to specify reallocations acceptable to the board of directors.
(d) Any plats or plans necessary to show the altered boundaries between the units involved, together with their other boundaries, shall be prepared; and the units depicted thereon shall bear their identifying numbers. The plats or plans shall indicate the new dimensions of the units involved. The plats or plans shall be certified as to their accuracy and compliance with this subsection by a registered land surveyor in the case of any plat and by a registered architect or registered engineer in the case of any plan.
(e) When appropriate instruments have been prepared and executed by the association in accordance with subsections (a) through (d) of this Code section, they shall be delivered immediately to the unit owners of the units involved upon payment by them of all reasonable costs for the preparation, execution, and recordation thereof. The instruments shall become effective when the unit owners of the units involved and the mortgagees of the units have executed them and they have been recorded. The recording of such instruments shall be conclusive evidence that any reallocations made pursuant to subsection (c) of this Code section were reasonable and were approved by the board of directors. Upon recordation, the instruments shall effectuate conveyancing by and between the unit owners of the units involved regardless of whether the instruments contain or provide for the use of conveyancing language.
(f) Any relocation of boundaries between adjoining units shall be governed by this Code section and not by Code Section 44-3-92.Code Section 44-3-92 shall apply only to the subdivision of units which are intended to result in the creation of two or more new units in place of the subdivided unit.
(a) If the condominium instruments expressly permit the subdivision of any units, the units may be subdivided in accordance with this Code section and any restrictions and limitations which the condominium instruments may specify.
(b) If the unit owner of any unit which may be subdivided desires to subdivide the unit, the association, upon written application of the subdivider, as the unit owner shall henceforth be referred to in this Code section, and the written consent of the mortgagees of the unit, shall immediately prepare and execute appropriate instruments pursuant to subsections (c) and (d) of this Code section. No vote of the unit owners shall be necessary for the amendments provided in this Code section to be executed by the association.
(c) An amendment to the declaration shall assign identifying numbers to the units created by the subdivision of a unit and shall allocate among those units on a reasonable basis acceptable to the subdivider and the board of directors all of the undivided interest in the common elements, votes in the association, and liabilities for common expenses pertaining to the subdivided unit immediately prior to the subdivision. With regard to any limited common elements assigned to the subdivided unit, the units created by the subdivision shall jointly share all rights and shall be liable equally for all obligations so that the total of the assessments therefor equals the total of the common expenses attributable to such limited common elements, except to the extent that the subdivider may have specified in his written application that all or any portion or portions of any limited common element assigned to the subdivided unit should be assigned exclusively to one or more, but less than all, of the units created by the subdivision, in which case the amendment to the declaration shall reflect the desires of the subdivider as expressed in the written application.
(d) Any plats or plans necessary to show the boundaries separating the units created by the subdivision, together with their other boundaries, shall be prepared; and the units created by the subdivision depicted thereon shall bear their identifying numbers. The plats or plans shall indicate the dimensions of the units created by the subdivision. The plats or plans shall be certified as to their accuracy and compliance with this subsection by a registered land surveyor in the case of any plat and by a registered architect or registered engineer in the case of any plan.
(e) When appropriate instruments in accordance with subsections (a) through (d) of this Code section have been prepared and executed by the association, they shall be delivered immediately to the subdivider upon payment by the subdivider of all reasonable costs for the preparation, execution, and recordation thereof. The instruments shall become effective when the subdivider and all mortgagees of the unit have executed them and they have been recorded. The recordation of such instruments shall be conclusive evidence that any reallocations made pursuant to subsection (c) of this Code section were reasonable and were approved by the board of directors.
(f) This Code section shall have no application to convertible spaces which shall be governed by Code Section 44-3-88.
(a)(1) Except to the extent expressly permitted or required by other provisions of this article, the condominium instruments shall be amended only by the agreement of unit owners of units to which two-thirds of the votes in the association pertain or such larger majority as the condominium instruments may specify; provided, however, that, during any such time as there shall exist an unexpired option to add any additional property to the condominium or during any such time as the declarant has the right to control the association pursuant to Code Section 44-3-101, the agreement shall be that of the declarant and the unit owners of units to which two-thirds of the votes in the association pertain, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant, or a larger majority as the condominium instruments may specify.
(2) Except to the extent expressly permitted or required by other provisions of this article, from and after July 1, 1990, no amendment of a condominium instrument shall require approval of unit owners to which more than 80 percent of the association vote pertains and the mortgagees holding 80 percent of the voting interest of mortgaged units; provided, however, that the provisions of any condominium instruments in effect on July 1, 1990, which provide for a majority in excess of 80 percent shall not be affected or modified by the provisions of this paragraph if by July 1, 1991, the association and those mortgagees permitted to vote on amendments voted by the majority required for an amendment as specified in the condominium instrument to retain the existing requirements for amendments; and provided, further, if no such vote by the required majority occurred, those provisions requiring more than 80 percent shall be deemed to require only 80 percent of the voting interest. The approval of any proposed amendment by a mortgagee shall be deemed implied and consented to if the mortgagee fails to submit a response to any written proposal for an amendment within 30 days after the mortgagee receives notice of the proposed amendment sent by certified or registered mail or statutory overnight delivery, return receipt requested. This paragraph shall not be deemed to eliminate or modify any right of the declarant provided for in the condominium instruments to approve amendments to the condominium instruments so long as the declarant owns any unit primarily for the purpose of sale and, furthermore, this paragraph shall not be construed as modifying or altering the rights of a mortgagee set forth elsewhere in this article.
(b) If none of the units in the condominium is restricted exclusively to residential use, the condominium instruments may specify a majority smaller than the minimum specified by subsection (a) of this Code section.
(c) Except to the extent expressly permitted or required by other provisions of this article or agreed upon by all unit owners and the mortgagees of all condominium units, no amendment to the condominium instruments shall change the boundaries of any unit, the undivided interest in the common elements pertaining thereto, the number of votes in the association pertaining thereto, or the liability for common expenses pertaining thereto.
(d) Agreement of the required majority of unit owners to any amendment of the condominium instruments shall be evidenced by their execution of the amendment. In the alternative, provided that the declarant does not then have the right to control the association pursuant to Code Section 44-3-101, the sworn statement of the president, of any vice-president, or of the secretary of the association attached to or incorporated in an amendment executed by the association, which sworn statement states unequivocally that agreement of the required majority was otherwise lawfully obtained and that any notices required under this article were properly given, shall be sufficient to evidence the required agreement. Any such amendment of the condominium instruments shall become effective only when recorded or at such later date as may be specified in the amendment itself.
(e) In any court suit or action where the validity of the adoption of an amendment to a condominium instrument is in issue, the adoption of the amendment shall be presumed valid if the suit is commenced more than one year after the recording of the amendment on the public record. In such cases, the burden of proof shall be upon the party challenging the validity of the adoption of the amendment.
Unless otherwise provided in the condominium instruments, in the event of damage to or destruction of any unit by a casualty covered under insurance required to be maintained by the association pursuant to Code Section 44-3-107, the association shall cause the unit to be restored. Unless otherwise provided in the condominium instruments, any funds required for such restoration in excess of the insurance proceeds attributable thereto shall be paid by the unit owner of the unit; provided, however, that, in the event that the unit owner of the unit together with the unit owners of other units to which two-thirds of the votes in the association pertain agree not to restore the unit, the unit shall not be restored and the entire undivided interest in the common elements pertaining to that unit shall then pertain to the remaining units, to be allocated to them in proportion to their undivided interests in the common elements, and the remaining portion of that unit shall thenceforth be a part of the common elements. Votes in the association and liability for future common expenses shall thereupon pertain to the remaining units, being allocated to them in proportion to their relative voting strength in the association and liability for common expenses, respectively. To the extent provided for in the condominium instruments, the association may allocate equitably the payment of a reasonable insurance deductible between the association and the unit owners affected by a casualty against which the association is required to insure; provided, however, that the amount of deductible which can be allocated to any one unit owner shall not exceed $5,000.00 per casualty loss covered under any insurance required to be maintained by the association under this article. The existence of a reasonable deductible in any required insurance policy shall not be deemed a failure to maintain insurance as required by this Code section.
(a) In the event of the foreclosure of any mortgage or lien which is subordinate to the declaration or from which any condominium unit has been released, the foreclosure shall not terminate the condominium; and, upon his purchase, the mortgagee, lienholder, or other purchaser at foreclosure shall become the owner of all condominium units which had not been released from the mortgage or lien prior to the purchase. In the event of the foreclosure of any mortgage or lien which is not subordinate to the declaration and from which no condominium unit has been released, the foreclosure of the mortgage or lien shall terminate the condominium unless the foreclosing mortgagee or lienholder subordinates to the declaration prior to foreclosure or forecloses subject to the declaration. For the purposes of this Code section, a lien for labor or services performed or for materials furnished in the improvement of property, either before or after it becomes submitted property, recorded upon the submitted property as a whole after the recordation of the declaration, shall be subordinate to the declaration.
(b) Any other provision of law to the contrary notwithstanding, liens for labor and services performed and for materials furnished for the improvement of property either before or after it becomes submitted property, which labor, services, and materials were performed or used in the original construction of any portion of a condominium or additional property of an expandable condominium, may be recorded against the submitted property as a whole; provided, however, that any such lien shall constitute a valid lien only against those units which have not been conveyed by the declarant to any person in a bona fide sale and purchase transaction prior to the recording of the lien. For those units which have been so conveyed, the lien shall be inapplicable and unenforceable.
(c) Subsequent to the creation of the condominium and as long as the submitted property remains subject to this article, no lien shall arise or, except as provided in subsections (a) and (b) of this Code section, be effective against the submitted property as a whole. During such period of submission to this article and except as provided in this subsection, liens or encumbrances shall arise or be created or effective only against each condominium unit in the same manner and under the same conditions in every respect as liens or encumbrances may arise or be created upon or be effective against any other separate parcel of real property subject to individual ownership; provided, however, that labor or services performed or materials furnished for improvement of the common elements, if duly authorized by the association, shall be deemed to be performed or furnished with the express consent of each unit owner and shall, if other applicable provisions of law are complied with and subject to the limitations thereof, create a lien upon all of the condominium units subject to subsection (d) of this Code section.
(d) In the event that any lien for labor or services performed or materials furnished for improvement of the common elements becomes effective subsequent to the creation of the condominium, any unit owner may remove that lien from his condominium unit by the payment of the amount attributable to his condominium unit. The amount shall be computed by reference to the liability for common expenses pertaining to that condominium unit pursuant to subsection (c) of Code Section 44-3-80. Subsequent to the payment, discharge, or other satisfaction, the unit owner of that condominium unit shall be entitled to have that lien released as to his condominium unit in accordance with applicable provisions of law; and, notwithstanding anything to the contrary in Code Sections 44-3-80 and 44-3-109, the association shall not assess or have a valid lien against that condominium unit for any portion of the common expenses incurred in connection with that lien.
For all purposes, each condominium unit shall constitute a separate parcel of real property which shall be distinct from all other condominium units. If there is any unit owner other than the declarant, no tax or assessment shall be levied on the condominium as a whole but only on the individual condominium units.
(a) If any portion of the common elements is taken by eminent domain, the award therefor shall be allocated to the unit owners in proportion to their respective undivided interests in the common elements unless otherwise provided in the condominium instruments; provided, however, that the portion of the award attributable to the taking of any permanently assigned limited common element shall be allocated to the unit owner of the unit to which that limited common element was so assigned at the time of the taking. If any limited common element is permanently assigned to more than one unit at the time of the taking, the portion of the award attributable to the taking thereof shall be allocated in equal shares to the unit owners of the units to which it was so assigned or in such other shares as the declaration may specify for this purpose.
(b) If one or more units are taken by eminent domain, the undivided interest in the common elements pertaining to any such units shall then pertain to the remaining units to be allocated to them in proportion to their respective undivided interests in the common elements. The court shall enter a decree reflecting the reallocation of undivided interests produced thereby; and the award shall include, without limitation, just compensation to the unit owner of any unit taken for his undivided interest in the common elements as well as for his unit.
(c) If a portion of any unit is taken by eminent domain, the court shall determine the fair market value of the portion of such unit not taken; and the undivided interest in the common elements pertaining to any such unit shall be reduced, in the case of each such unit, in proportion to the diminution in the fair market value of such unit resulting from the taking. The portion of undivided interest in the common elements thereby divested from the unit owner of any such unit shall be reallocated among that unit and the other units in the condominium in proportion to their respective undivided interests in the common elements. Any units partially taken shall participate in such reallocation on the basis of their undivided interests as reduced in accordance with the preceding sentence. The court shall enter a decree reflecting the reallocation of undivided interests produced thereby; and the award shall include, without limitation, just compensation to the unit owner of any unit partially taken for that portion of his undivided interest in the common elements divested from him by operation of the first sentence of this subsection and not revested in him by operation of the second sentence of this subsection as well as for that portion of his unit taken by eminent domain.
(d) If the taking of a portion of any unit makes it impractical to use the remaining portion of that unit for the primary purpose permitted by the condominium instruments, the entire undivided interest in the common elements pertaining to that unit shall then pertain to the remaining units, to be allocated to them in proportion to their respective undivided interests in the common elements, and the remaining portion of that unit shall thenceforth be a part of the common elements. The court shall enter a decree reflecting the reallocation of the undivided interests produced thereby; and the award shall include, without limitation, just compensation to the unit owner of such unit for his entire undivided interest in the common elements and for his entire unit.
(e) Votes in the association and liability for future common expenses pertaining to any unit or units taken or partially taken by eminent domain shall then pertain to the remaining units, to be allocated to them in proportion to their relative voting strength in the association and liability for common expenses, respectively, with any unit partially taken participating in such reallocation as though its voting strength and its liability for common expenses in the association had been reduced in proportion to the reduction in its undivided interest in the common elements and the decree of the court shall provide accordingly.
(f) Any or all of the matters which, under this Code section, are prescribed for the determination of the court may instead be resolved by amendment to the declaration agreed to by unit owners to which more than 50 percent of the votes in the association pertain, including the unit owner of all units wholly or partially taken, or to which there is appurtenant any permanently assigned limited common element wholly or partially taken, together with the mortgagee of each such unit.
(a) The condominium shall be terminated only by the agreement of unit owners of units to which four-fifths of the votes in the association pertain and all mortgagees of such units or such larger majority as the condominium instruments may specify; provided, however, that during such times, if any, as there shall exist an unexpired option to add any additional property to the condominium or during such time, if any, as the declarant has the right to control the association pursuant to Code Section 44-3-101, the agreement shall be that of the declarant and the unit owners of units to which four-fifths of the votes in the association pertain, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant, and the mortgagees of those units or the larger majority that the condominium instruments may specify.
(b) If none of the units in the condominium are restricted exclusively to residential use, the condominium instruments may specify a majority smaller than the minimum specified by subsection (a) of this Code section.
(c) Agreement of the required majority of unit owners and their mortgagees to termination of the condominium shall be evidenced by their execution of a termination agreement. Any termination agreement shall become effective only when recorded or at such later date as may be specified therein. For the purposes of this Code section, a termination agreement shall be deemed a condominium instrument subject to Code Section 44-3-74.
(d) Upon the effective date of a termination agreement, all of the property constituting the condominium shall be owned by the unit owners as tenants in common and shall be in proportion to their respective undivided interests in the common elements immediately prior to the effective date. As long as the tenancy in common lasts, however, each unit owner and his heirs, representatives, successors, and assigns shall have the same right of occupancy and use of that portion of the property which formerly constituted his unit and the limited common elements appurtenant thereto, if any, as existed immediately prior to termination and a nonexclusive right to use that portion of the property which formerly constituted common elements other than limited common elements.
(e) Upon the effective date of a termination agreement, any rights the unit owners may have to the assets of the association shall be in proportion to their respective undivided interests in the common elements immediately prior to the effective date; and any distribution thereof to the unit owners shall be to such owners and to their mortgagees as their interests may appear.
(f) Upon the effective date of a termination agreement, mortgages and liens affecting each unit shall be deemed to be transferred, in accordance with their existing priorities, to the undivided interest of the unit owner in the property which formerly constituted the condominium.
(g) After the effective date of a termination agreement and except as otherwise expressly provided in this Code section, the property which formerly constituted the condominium and the rights and obligations of the former unit owners with respect thereto shall be subject to and governed by the laws of this state pertaining to tenancies in common for as long as the tenancy in common lasts.
(a) Unless the condominium instruments expressly prohibit the withdrawal of any submitted property from the condominium, submitted property may be withdrawn but only in accordance with this Code section and any restrictions or limitations which the condominium instruments may specify, the property being withdrawn hereinafter being referred to as the “withdrawn property”; provided, however, that no unit or limited common element may be withdrawn in part.
(b) Submitted property may be withdrawn from the condominium only by an amendment to the condominium instruments agreed to by the following required persons:
(1) The owner of each unit which is being withdrawn;
(2) The owner of each unit to which pertains any limited common element which is being withdrawn;
(3) The declarant, if, at the time of the withdrawal there shall exist any unexpired option to add any additional property to the condominium, or if, at the time of the withdrawal, the declarant has the right to control the association pursuant to Code Section 44-3-101;
(4) The owners of the units to which pertain four-fifths of the votes in the association or such larger majority as may be specified in the condominium instruments, exclusive of the votes appertaining to the units owned by the persons required in paragraphs (1) through (3) of this subsection. If none of the units in the condominium are restricted exclusively to residential use, the condominium instruments may specify a majority smaller than four-fifths; and
(5) Each mortgagee of the units owned by the required persons set forth in paragraphs (1) through (4) of this subsection.
(c) If the withdrawn property includes any unit, the amendment effectuating the withdrawal shall specify the reallocation to the remaining units of the undivided interest in the common elements, the number of votes in the association, and the share of liability for common expenses pertaining to the unit or units being withdrawn. The reallocation of each item shall be in proportion to the allocation of the item among the remaining units immediately prior to the effectuation of the withdrawal.
(d) If the withdrawn property does not include any unit or any limited common element, the withdrawn property shall, upon the effective date of the amendment, be owned by the unit owners as tenants in common in proportion to their respective undivided interest in the common elements immediately prior to the effective date.
(e) If any unit or any limited common element is included in the withdrawn property, the amendment shall allocate to the owner of each such unit or of each unit to which each such limited common element pertains, as the case may be, an undivided interest in the withdrawn property in consideration for the withdrawal of the unit or limited common element. The remaining undivided interest in the withdrawn property shall be allocated among the unit owners, including the owners of any unit or units to which there are appurtenant limited common elements which are being withdrawn, in proportion to their respective undivided interests in the common elements immediately preceding the effective date of the amendment.
(f) The amendment to the declaration effectuating the withdrawal of submitted property shall be executed by those persons whose agreement thereto is required under subsection (b) of this Code section and shall include:
(1) A legal description by metes and bounds of the withdrawn property;
(2) A legal description by metes and bounds of the remaining submitted property;
(3) The effective date of the amendment if subsequent to the date of recording the amendment;
(4) The undivided interest in the withdrawn property being allocated to each unit owner; and
(5) The undivided interest in the common elements, the number of votes in the association, and the share of liability for common expenses pertaining to each unit remaining in the condominium.
The amendment shall become effective only when it and all plats required in connection therewith under subsection (e) of Code Section 44-3-83 shall have been recorded or at such later date as may be specified therein.
(g) Upon the effective date of the amendment, the withdrawn property shall be owned by the unit owners as tenants in common having the undivided interests set forth in the amendment. As long as the tenancy in common lasts, however, each unit owner and his heirs, representatives, successors, and assigns shall have the same right of occupancy and use of that portion of the withdrawn property which formerly constituted his unit and the limited common elements appurtenant thereto, if any, as existed immediately prior to the withdrawal and a nonexclusive right to use that portion of the withdrawn property which formerly constituted common elements other than limited common elements.
(h) Upon the effective date of the amendment, mortgages and liens of unit owners theretofore affecting any portion of the withdrawn property shall, regarding the withdrawn property, be deemed to be transferred in accordance with their existing priorities to the undivided interests of the respective owners in the withdrawn property. Mortgages and liens of the unit owners theretofore affecting any portion of the remaining submitted property shall, regarding such remaining submitted property, not be affected by the withdrawal and shall continue in full force and effect; provided, however, that, in the case of mortgages or liens theretofore affecting only a condominium unit or units which are included within the withdrawn property, the lien of such mortgage or lien shall be transferred wholly to the undivided interest of the owner or owners of such unit or units in the withdrawn property, including both the undivided interest allocated in consideration of the withdrawal of said units and the undivided interest allocated in common to all unit owners, and the lien of such mortgage or lien shall not thereafter affect or be applicable to any portion of the remaining submitted property.
(i) After the effective date of the amendment and except as otherwise expressly provided in this Code section, the withdrawn property and the rights and obligations of the unit owners with respect thereto shall be subject to and governed by the laws of this state pertaining to tenancies in common for as long as the tenancy in common lasts.
(a) Prior to recording the declaration, the declarant shall cause the association to be duly incorporated either as a business corporation under Chapter 2 of Title 14 or as a nonprofit membership corporation under Chapter 3 of Title 14. The corporate name of the association shall include the phrase “unit owners’ association” or the phrase “condominium association” and shall otherwise comply with applicable laws regarding corporate names. The articles of incorporation of the association and the bylaws adopted by the association shall contain provisions not inconsistent with applicable law, including, but not limited to, this article, or with the declaration, as may be required by this article or by the declaration and as may be deemed appropriate or desirable for the proper management and administration of the association. Each unit owner shall automatically be a member of the association. The term “member” shall include a shareholder in the event the association is a business corporation or issues stock. Membership shall continue during the period of ownership by such unit owner.
(b) Prior to the first conveyance of a condominium unit, the declarant shall cause the first board of directors to be duly appointed, the officers to be elected, and the organization of the association to be effectuated.
(c) True and correct copies of the articles of incorporation and bylaws of the association and all amendments thereto shall be maintained at the principal and the registered offices of the association and at the sales office of the declarant so long as the declarant has the right to control the association pursuant to Code Section 44-3-101; and copies thereof shall be furnished to any unit owner on request upon payment of a reasonable charge therefor.
(a) If provided for in the condominium instruments and subject to any limitations contained in the condominium instruments, the association's articles of incorporation, the association's bylaws, or this article with respect thereto, the declarant shall be authorized to appoint and remove any member or members of the board of directors and any officer or officers of the association. The declarant's authority to appoint and remove members of the board of directors and officers of the association shall in no event extend beyond and shall in all cases expire immediately upon the occurrence of any of the following:
(1) The expiration of any time limit specified for such purpose in the condominium instruments, which time limit may not be enlarged or extended after the conveyance by the declarant of a condominium unit without the express consent of all unit owners;
(2) Unless the declarant at that time has an unexpired option to add additional property, the date as of which units to which four-fifths of the undivided interests in the common elements pertain shall have been conveyed by the declarant to unit owners other than a person or persons constituting the declarant;
(3) The expiration of seven years after the recording of the declaration in the case of an expandable condominium or the expiration of three years after the recording of the declaration in the case of any other type of condominium; or
(4) The surrender by the declarant of the authority to appoint and remove members of the board of directors and officers of the association by an express amendment to the declaration which is executed and recorded by the declarant.
No formal or written proxy or power of attorney need be required of the unit owners to vest such authority to appoint and remove members of the board of directors and officers of the association in the declarant, the acceptance of a conveyance of a condominium unit being wholly sufficient for such purpose.
(b) Upon the expiration of the period of the declarant's right to control the association pursuant to subsection (a) of this Code section, the right to control shall automatically pass to the unit owners, including the declarant if the declarant then owns one or more condominium units. The declarant shall be jointly responsible and liable with the members of the board of directors and the officers of the association to the unit owners for ensuring that the books, records, and accounts of the association are in proper order, that the association is in good standing under the laws of this state, and that the affairs of the association have been conducted in a prudent and businesslike manner, all as of the date upon which the declarant's right to control the association expires. The declarant shall not be insulated against liability to the unit owners because any act, omission, or matter complained of during such period of control may have been done, omitted, or permitted by or on behalf of the association as a corporate entity. Nothing contained in this Code section shall make any successor to the declarant responsible or subject to liability by operation of law or through the purchase of the declarant's interest in the property or any part thereof at foreclosure for any act, omission, or matter occurring or arising from any act, omission, or matter occurring prior to the time the successor succeeded to the interest of the declarant.
(c)(1) Notwithstanding and prior to the usual expiration of the period of the declarant's right to control the association pursuant to subsection (a) of this Code section and notwithstanding any provision to the contrary in any condominium instruments, the association's articles of incorporation, or the association's bylaws, the right to control also may pass to the unit owners as provided in this subsection if the declarant fails to do any of the following:
(A) Incorporate or maintain an annual registration pursuant to subsection (a) of Code Section 44-3-100;
(B) Cause the board of directors to be duly appointed and the officers to be elected pursuant to subsection (b) of Code Section 44-3-100;
(C) Maintain and make available to owners, upon written request, a list of the names and business or home addresses of the association's current directors and officers;
(D) Call meetings of the members of the association in accordance with the provisions of the association's bylaws at least annually pursuant to Code Section 44-3-102;
(E) Prepare an annual operating budget, establish the annual assessment, and distribute such budget and notice of assessment to the owners in accordance with the condominium instruments no later than 30 days after the beginning of the association's fiscal year; or
(F) Pay property taxes on common property of the condominium for two or more years.
(2) In the event that the declarant fails to meet one or more of the obligations of this subsection, then any owner, acting individually or jointly with other owners, may send the declarant written notice of the failure to comply with such requirements and provide the declarant a 30 day opportunity to cure the failure; and such notice shall be sent by certified mail or statutory overnight delivery to the declarant's principal office. If the declarant fails to cure any or all deficiencies identified in the notice within 30 days of such notice, then any owner, acting individually or jointly with other owners, shall have standing individually, and not solely through a derivative action, to institute an action in the superior court of the county in which any portion of the condominium is located in order to obtain a declaratory judgment to grant the owner or owners control of the association by ordering an election and setting the terms thereof, or issuing any other orders appropriate to transfer control of the association. The superior court shall have authority to hold a hearing and issue a summary ruling on said action at any time designated by the court not earlier than 20 days after the service thereof, unless the parties consent in writing to an earlier trial. No discovery shall be had unless ordered by the court for good cause. In addition, the superior court shall be authorized to issue a summary ruling on the conveyance of any intended common areas or other property in the common interest community to the association or other appropriate entity. If the owner or owners prevail in such action, then the superior court shall award to the owner or owners all reasonable attorney's fees and costs incurred for the prosecution of such action. This subsection shall not be the basis for any liability against any party or agent of any party outside of the exclusive remedies provided herein.
(d) In addition to any right of termination set forth therein, any management contract, any lease of recreational area or facilities, or any other contract or lease executed by or on behalf of the association during the period of the declarant's right to control the association pursuant to subsection (a) of this Code section shall be subject to cancellation and termination at any time during the 12 months following the expiration of such control period by the affirmative vote of the unit owners of units to which a majority of the votes in the association pertain, unless the unit owners by a like majority shall have theretofore, following the expiration of such control period, expressly ratified and approved the same.
Meetings of the members of the association shall be held in accordance with the provisions of the association's bylaws and in any event shall be called not less frequently than annually. A condominium instrument recorded on or after July 1, 1990, shall also provide for the calling of a meeting upon the written request of at least 15 percent of the unit owners. Notice shall be given to each unit owner at least 21 days in advance of any annual or regularly scheduled meeting and at least seven days in advance of any other meeting and shall state the time, place, and purpose of such meeting. Such notice shall be delivered personally, sent by United States mail, postage prepaid, statutory overnight delivery, or issued electronically in accordance with Chapter 12 of Title 10, the “Uniform Electronic Transactions Act,” to all unit owners of record at such address or addresses as any of them may have designated or, if no other address has been so designated, at the address of their respective units. At the annual meeting, comprehensive reports of the affairs, finances, and budget projections of the association shall be made to the unit owners.
Unless the condominium instruments or bylaws provide otherwise, a quorum shall be deemed present throughout any meeting of the members of the association if persons entitled to cast more than one-third of the votes are present at the beginning of the meeting. Unless the condominium instruments or bylaws specify a larger percentage, the presence of persons entitled to cast one-half of the votes of the board of directors shall constitute a quorum for the transaction of any business at any meeting of the board.
If the condominium instruments provide that any member of the board of directors or any officer of the association must be a unit owner, then, notwithstanding paragraph (1) of subsection (a) of Code Section 44-3-75, the term “unit owner” in such context shall, unless the condominium instruments otherwise provide, be deemed to include, without limitation, any shareholder, director, officer, partner in, or trustee of any person who is, either alone or in conjunction with any other person or persons, a unit owner. Any individual who would not be eligible to serve as a member of the board of directors or officer were he not a shareholder, director, officer, partner in, or trustee of such a person shall be deemed to have disqualified himself from continuing in office if he ceases to have any such affiliation with that person.
Except to the extent otherwise provided by the condominium instruments, all powers and responsibilities with regard to maintenance, repair, renovation, restoration, and replacement shall pertain to the association in the case of the common elements other than limited common elements and to the individual unit owner in the case of any unit and the limited common elements, if any, appurtenant thereto. Each unit owner shall afford to the other unit owners, to the association, and to any agents or employees of either such access through his unit as may be reasonably necessary to enable them to exercise and discharge their respective powers and responsibilities. To the extent that damage is inflicted on the common elements, including, without limitation, limited common elements, or on any unit through which access is taken, the association or unit owner occasioning the same, whether by itself or himself or through agents, employees, or others, shall be liable for the prompt repair thereof.
(a) Except to the extent prohibited by the condominium instruments and subject to any restrictions and limitations specified therein, the association shall have the power to:
(1) Employ, retain, dismiss, and replace agents and employees to exercise and discharge the powers and responsibilities of the association;
(2) Make or cause to be made additional improvements on and as a part of the common elements; and
(3) Grant or withhold approval of any action by one or more unit owners or other persons entitled to occupancy of any unit if such action would change the exterior appearance of any unit or of any other portion of the condominium or elect or provide for the appointment of an architectural control committee to grant or withhold such approval.
(b) Except to the extent prohibited by the condominium instruments and subject to any restrictions and limitations specified therein, the association shall have the irrevocable power, as attorney in fact on behalf of all unit owners and their successors in title, to grant easements, leases, and licenses through or over the common elements, to accept easements, leases, and licenses benefiting the condominium or any portion thereof, and to acquire or lease property in the name of the association as nominee for all unit owners. Property so acquired by the association as nominee for the unit owners, upon the recordation of the deed thereto or other instrument granting the same, shall automatically and without more, and for all purposes, including, without limitation, taxation, be a part of the common elements. The association shall also have the power to acquire, lease, and own in its own name property of any nature, real, personal, or mixed, tangible or intangible; to borrow money; and to pledge, mortgage, or hypothecate all or any portion of the property of the association for any lawful purpose within the association's inherent or expressly granted powers. Any third party dealing with the association shall be entitled to rely in good faith upon a certified resolution of the board of directors of the association authorizing any such act or transaction as conclusive evidence of the authority and power of the association so to act and of full compliance with all restraints, conditions, and limitations, if any, upon the exercise of such authority and power. The provisions of Code Section 44-2-2 notwithstanding, any such actions taken by the association as attorney in fact on behalf of all unit owners and their successors in title shall be effective record notice to third parties if recorded in the name of the association as that name is reflected in the recorded declaration or any recorded amendments thereto. Such recorded document shall not require a listing of the names of the unit owners or their successors in title or assigns.
(c) The association shall have the power to amend the condominium instruments, the articles of incorporation, and the bylaws of the association or any of them in such respects as may be required to conform to mandatory provisions of this article or of any other applicable law without a vote of the unit owners.
(d) In addition to any other duties and responsibilities as this article or the condominium instruments may impose, the association shall keep:
(1) Detailed minutes of all meetings of the members of the association and of the board of directors;
(2) Detailed and accurate financial records, including itemized records of all receipts and expenditures; and
(3) Any books and records as may be required by law or be necessary to reflect accurately the affairs and activities of the association.
(e) This Code section shall not be construed to prohibit the grant or imposition of other powers and responsibilities to or upon the association by the condominium instruments.
(f) Except to the extent otherwise expressly required by this article, by Chapter 2 or 3 of Title 14, by the condominium instruments, by the articles of incorporation, or by the bylaws of the association, the powers inherent in or expressly granted to the association may be exercised by the board of directors, acting through the officers, without any further consent or action on the part of the unit owners.
(g) A tort action alleging or founded upon negligence or willful misconduct by any agent or employee of the association or in connection with the condition of any portion of the condominium which the association has the responsibility to maintain shall be brought against the association. No unit owner shall be precluded from bringing such an action by virtue of his ownership of an undivided interest in the common elements or by virtue of his membership in the association. A judgment against the association arising from a tort action shall be a lien against the property of the association.
(h) The association shall have the capacity, power, and standing to institute, intervene in, prosecute, represent in, or defend, in its own name, litigation, administrative or other proceedings of any kind concerning claims or other matters relating to any portions of the units or common elements which the association has the responsibility to administer, repair, or maintain; and such capacity, power, and standing shall not be waived, abridged, modified, or removed by any provision of any contract or document, including the condominium instruments, that were recorded, entered into, or established prior to the expiration of the period of the declarant's right to control the association as set forth in subsection (a) of Code Section 44-3-101.
(i) This Code section shall not alter, modify, or remove the association's obligation to comply with Part 2A of Article 1 of Chapter 2 of Title 8.
(a) The association shall obtain:
(1) A property insurance policy or policies affording fire and extended coverage insurance for and in an amount consonant with the full insurable replacement cost, less deductibles, of all buildings and structures within the condominium. Regardless of the boundaries of the condominium units, the insurance required by this paragraph shall include, without limitation, all portions of each building which are common elements including limited common elements, all foundations, roofs, roof structures, and exterior walls, including windows and doors and the framing therefor, and all convertible space within the building. Such insurance shall cover the following items with respect to each condominium unit regardless of who is responsible for maintaining them under the condominium instruments:
(A) The HVAC system serving the condominium unit;
(B) All Sheetrock and plaster board comprising the walls and ceilings of the condominium unit; and
(C) The following items within the condominium unit of the type and quality initially installed, or replacements thereof of like kind and quality in accordance with the original plans and specifications, or as they existed at the time the condominium unit was initially conveyed if the original plans and specifications are not available: floors and subfloors; wall, ceiling, and floor coverings; plumbing and electrical lines and fixtures; built-in cabinetry and fixtures; and appliances used for refrigeration, cooking, dishwashing, and laundry.
Unless otherwise provided in the declaration, with respect to unfinished shell units conveyed by the declarant, the items in subparagraph (C) of this paragraph shall be insured by the condominium unit owner and the coverage required by this paragraph shall repair or reconstruct only those portions of the shell unit constructed by the declarant. With respect to any condominium units which have not been conveyed by the declarant at the time of an insured loss, the coverage required by this paragraph shall repair or reconstruct such units as they exist at the time of such loss. The association may exclude from coverage required by this paragraph improvements made by the condominium unit owners and structures covered by builder's risk insurance, such coverage to be in an amount consonant with the full replacement value thereof, but only during such period of time as the builder's risk insurance remains in full force and effect and only on the condition that the association is named as an additional named insured;
(2) A commercial general liability insurance policy or policies affording coverage for bodily injury and property damage in an amount not less than $1 million for a single occurrence and $2 million aggregate. The policy or policies shall cover the association, the board of directors and the officers of the association, all agents and employees of the association, and all unit owners and other persons entitled to occupy any unit or other portion of the condominium for occurrences commonly insured against arising out of or in connection with the use, ownership, or maintenance of the common elements or other portion of the condominium which the association has the responsibility to maintain; and
(3) Any additional types and amounts of insurance coverage as may be specified in the condominium instruments.
(b) The association may obtain additional types and amounts of insurance as may be authorized by the board of directors.
(c) In the event of a potential or submitted claim related to water damage or water peril on any insurance policy obtained by:
(1) An association, and upon written request by a unit owner to the association, the association or its designated agent shall, within five business days from the receipt of such request, provide to such owner a copy of the association's certificate of insurance for all such insurance obtained by the association that may apply to such potential claim or submitted claim. Such request shall state an address to which such information shall be directed and shall specify whether such information shall be available for pickup, mailed, or sent by electronic communication along with the specific address for mailing or electronic communication. When such claim related to water damage or water peril has been submitted, and upon written request by a unit owner to the association, the association or its designated agent shall, within five business days from the receipt of such request, provide the name, address, and telephone number of the insurance adjuster, if one has been identified to the association; or
(2) A unit owner, and upon written request by an association or its designated agent to a unit owner, the unit owner shall, within five business days from the receipt of such request, provide to the association or its designated agent a copy of the unit owner's certificate of insurance for all such insurance obtained by the unit owner that may apply to the potential claim or actual claim. Such request shall state an address to which such information is to be directed and shall specify whether such information shall be available for pickup, mailed, or sent by electronic communication along with the specific address for mailing or electronic communication. When such claim related to water damage or water peril has been submitted, and upon written request by the association to a unit owner, the unit owner or its designated agent shall, within five business days from the receipt of such request, provide the name, address, and telephone number of the insurance adjuster, if one has been identified to the unit owner.
Nothing contained in this subsection shall require an association to obtain insurance related to water damage or water perils.
The common profits shall be applied to the payment of common expenses, and the rights in any surplus remaining after such payment shall pertain to the condominium units in proportion to the liability for common expenses pertaining to each such unit. The surplus shall be accordingly distributed to or credited to the next assessments chargeable to the unit owners except to such extent as the condominium instruments may require or permit the same to be added to reserves maintained pursuant to those instruments.
(a) All sums lawfully assessed by the association against any unit owner or condominium unit, whether for the share of the common expenses pertaining to that condominium unit, for fines, or otherwise, and all reasonable charges made to any unit owner or condominium unit for materials furnished or services rendered by the association at the owner's request to or on behalf of the unit owner or condominium unit, shall, from the time the same become due and payable, be the personal obligation of the unit owner and constitute a lien in favor of the association on the condominium unit prior and superior to all other liens whatsoever except:
(1) Liens for ad valorem taxes on the condominium unit;
(2) The lien of any first priority mortgage covering the unit and the lien of any mortgage recorded prior to the recording of the declaration;
(3) The lessor's lien provided for in Code Section 44-3-86; and
(4) The lien of any secondary purchase money mortgage covering the unit, provided that neither the grantee nor any successor grantee on the mortgage is the seller of the unit.
The recording of the declaration pursuant to this article shall constitute record notice of the existence of the lien, and no further recordation of any claim of lien for assessments shall be required.
(b) To the extent that the condominium instruments provide, the personal obligation of the unit owner and the lien for assessments shall also include:
(1) A late or delinquency charge not in excess of the greater of $ 10.00 or 10 percent of the amount of each assessment or installment thereof not paid when due;
(2) At a rate not in excess of 10 percent per annum, interest on each assessment or installment thereof and any delinquency or late charge pertaining thereto from the date the same was first due and payable;
(3) The costs of collection, including court costs, the expenses of sale, any expenses required for the protection and preservation of the unit, and reasonable attorney's fees actually incurred; and
(4) The fair rental value of the condominium unit from the time of the institution of an action until the sale of the condominium at foreclosure or until the judgment rendered in the action is otherwise satisfied.
(c) Not less than 30 days after notice is sent by certified mail or statutory overnight delivery, return receipt requested, to the unit owner both at the address of the unit and at any other address or addresses which the unit owner may have designated to the association in writing, the lien may be foreclosed by the association by an action, judgment, and foreclosure in the same manner as other liens for the improvement of real property, subject to superior liens or encumbrances, but any such court order for judicial foreclosure shall not affect the rights of holders of superior liens or encumbrances to exercise any rights or powers afforded to them under their security instruments. The notice provided for in this subsection shall specify the amount of the assessments then due and payable together with authorized late charges and the rate of interest accruing thereon. No foreclosure action against a lien arising out of this subsection shall be permitted unless the amount of the lien is at least $2,000.00. Unless prohibited by the condominium instruments, the association shall have the power to bid on the unit at any foreclosure sale and to acquire, hold, lease, encumber, and convey the same. The lien for assessments shall lapse and be of no further effect, as to assessments or installments thereof, together with late charges and interest applicable thereto, four years after the assessment or installment first became due and payable.
(d) Any unit owner, mortgagee of a unit, person having executed a contract for the purchase of a condominium unit, or lender considering the loan of funds to be secured by a condominium unit shall be entitled upon request to a statement from the association or its management agent setting forth the amount of assessments past due and unpaid together with late charges and interest applicable thereto against that condominium unit. Such request shall be in writing, shall be delivered to the registered office of the association, and shall state an address to which the statement is to be directed. Failure on the part of the association to mail or otherwise furnish such statement regarding amounts due and payable at the expiration of such five-day period with respect to the condominium unit involved to such address as may be specified in the written request therefor within five business days from the receipt of such request shall cause the lien for assessments created by this Code section to be extinguished and of no further force or effect as to the title or interest acquired by the purchaser or lender, if any, as the case may be, and their respective successors and assigns, in the transaction contemplated in connection with such request. The information specified in such statement shall be binding upon the association and upon every unit owner. Payment of a fee not exceeding $ 10.00 may be required as a prerequisite to the issuance of such a statement if the condominium instruments so provided.
(e) Nothing in this Code section shall be construed to prohibit actions maintainable pursuant to Code Section 44-3-76 to recover sums for which subsection (a) of this Code section creates a lien.
Any rights of first refusal or other restraints on free alienability of the condominium units created by the condominium instruments shall be void unless the condominium instruments make provision for furnishing upon request to any unit owner or person who has executed a contract for the purchase of a condominium unit a recordable statement certifying to any waiver of or failure or refusal to exercise such rights and restraints whenever such waiver, failure, or refusal has occurred. Failure or refusal to furnish that statement within 30 days or such lesser period as the condominium instruments may specify shall cause all such rights and restraints to be inapplicable to the disposition of the condominium unit in contemplation of which such statement was requested. Any such statement shall be binding on the association and on every unit owner. Payment of a fee not exceeding $25.00 may be required as a prerequisite to the issuance of such a statement if the condominium instruments so provide.
(a) This Code section shall apply only to the first bona fide sale of each residential condominium unit for residential occupancy by the buyer, any member of the buyer's family, or any employee of the buyer. This Code section shall apply to any such sale regardless of whether the seller is the declarant, the association, or any other person. A contract for a sale to which this Code section is applicable is referred to in this Code section as a “covered contract.”
(b) Any covered contract shall be voidable by the buyer until at least seven days after the seller has furnished to the prospective buyer the documents specified in this subsection. The copy of any such document which must be executed in order to be effective shall be a copy of the executed document. The documents required under this subsection to be furnished to the prospective buyer are the following:
(1) A copy of the floor plan of the unit which is the subject of the covered contract;
(2) A copy of the declaration and of each amendment thereto as of that time;
(3) A copy of the articles of incorporation and bylaws of the association and of each amendment to either as of that time;
(4) A copy of any ground lease or other underlying lease of all or any part of the condominium;
(5) A copy of every management, maintenance, and other contract for the management and operation of either the association, the condominium, or the facilities to be used by the unit owners having a term in excess of one year; contracts renewable without the consent of the association shall be deemed to have a term in excess of one year;
(6) The estimated or actual operating budget for the condominium for the current year containing the matters set forth in subparagraph (A) of this paragraph and a schedule of estimated or actual expenses pertaining to each condominium unit for the current year containing the matters set forth in subparagraph (B) of this paragraph:
(A) Expenses of the association for:
(i) Administration;
(ii) Management fees;
(iii) Maintenance;
(iv) Rent for recreational and other commonly used facilities;
(v) Taxes on property of the association;
(vi) Insurance;
(vii) Security provisions;
(viii) Other expenses;
(ix) Operating capital;
(x) Reserve for deferred maintenance;
(xi) Reserve for depreciation; and
(xii) Other reserves; and
(B) Expenses of the unit owner for:
(i) Assessments to cover association expenses;
(ii) Rent for the unit if part of a leasehold condominium; and
(iii) Rent, fees, or charges payable by the unit owner directly to the lessor or the lessor's agent under any recreational lease or lease for the use of commonly used facilities, which leases are and payment is a mandatory condition of ownership and which payment is not included in the assessments paid by the unit owner to the association;
(7) A copy of any lease of recreational or other facilities that will be used only by the unit owners;
(8) A copy of any lease of recreational or other facilities that will or may be used by unit owners in common with any other person;
(9) A copy of a statement setting forth the extent of and conditions or limitations applicable to the declarant's commitment to build and submit additional units, additional recreational or other facilities, or additional property; and
(10) If the covered contract applies to a condominium unit which is part of a conversion condominium:
(A) A statement by the declarant, based on a report prepared by an independent, registered architect or engineer, describing the present condition of all structural components and mechanical and electrical systems, excluding fixtures and appliances within the units, material to the use and enjoyment of the condominium;
(B) A statement by the declarant of the expected useful life of each item reported on as provided in subparagraph (A) of this paragraph or a statement that no representations are made in that regard; and
(C) A list of any outstanding notices of uncured violations of building code or other county or municipal regulations together with the estimated cost of curing those violations.
This paragraph shall not apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.
The items required by this subsection shall be bound or stapled into a single package and covered by an index sheet listing each item required by this subsection and showing either that the same is attached or does not exist. A nonrefundable deposit not in excess of $25.00 may be required of the recipient of the documents required by this Code section, such deposit to be applied to the purchase price of the condominium unit in the event of purchase by the recipient. A dated, written acknowledgment of receipt of all items required by this subsection, executed by the recipient, shall be prima-facie evidence of the date of delivery of said items.
(c)(1) Any covered contract shall be voidable by the buyer until at least seven days after the seller has furnished to the buyer all of the items required to be furnished under this Code section. This subsection may not be waived. The contract shall contain within the text the following legend in boldface type or capital letters no smaller than the largest type in the text:
“THIS CONTRACT IS VOIDABLE BY BUYER UNTIL AT LEAST SEVEN DAYS AFTER ALL OF THE ITEMS REQUIRED UNDER CODE SECTION 44-3-111 OF THE ‘GEORGIA CONDOMINIUM ACT’ TO BE DELIVERED TO BUYER HAVE BEEN RECEIVED BY BUYER. THE ITEMS SO REQUIRED ARE: (1) A FLOOR PLAN OF THE UNIT, (2) THE DECLARATION AND AMENDMENTS THERETO, (3) THE ASSOCIATION'S ARTICLES OF INCORPORATION AND BYLAWS AND AMENDMENTS THERETO, (4) ANY GROUND LEASE, (5) ANY MANAGEMENT CONTRACT HAVING A TERM IN EXCESS OF ONE YEAR, (6) THE ESTIMATED OR ACTUAL BUDGET FOR THE CONDOMINIUM, (7) ANY LEASE OF RECREATIONAL OR OTHER FACILITIES THAT WILL BE USED ONLY BY THE UNIT OWNERS, (8) ANY LEASE OF RECREATIONAL OR OTHER FACILITIES THAT WILL OR MAY BE USED BY THE UNIT OWNERS WITH OTHERS, (9) A STATEMENT SETTING FORTH THE EXTENT OF THE SELLER'S COMMITMENT TO BUILD OR SUBMIT ADDITIONAL UNITS, ADDITIONAL RECREATIONAL OR OTHER FACILITIES, OR ADDITIONAL PROPERTY, AND (10) IF THIS CONTRACT APPLIES TO A CONDOMINIUM UNIT WHICH IS PART OF A CONVERSION CONDOMINIUM, A STATEMENT DESCRIBING THE CONDITION OF CERTAIN COMPONENTS AND SYSTEMS, A STATEMENT REGARDING THE EXPECTED USEFUL LIFE OF CERTAIN COMPONENTS AND SYSTEMS, AND CERTAIN INFORMATION REGARDING ANY NOTICES OF VIOLATIONS OF COUNTY OR MUNICIPAL REGULATIONS. A DATED, WRITTEN ACKNOWLEDGMENT OF RECEIPT OF ALL SAID ITEMS SIGNED BY THE BUYER SHALL BE PRIMA-FACIE EVIDENCE OF THE DATE OF DELIVERY OF SAID ITEM.”
This paragraph shall apply to any condominium created on or after July 1, 1980, or to the expansion of any such condominium.
(2) No covered contract executed prior to the expiration of seven days after the actual delivery to the prospective purchaser of the items required to be furnished by subsection (b) of this Code section shall be of any force or effect whatsoever. This subsection may not be waived. The contract shall contain within the text the following legend in boldface type or capital letters no smaller than the largest type in the text:
“UNLESS ALL OF THE ITEMS REQUIRED UNDER CODE SECTION 44-3-111 OF THE ‘GEORGIA CONDOMINIUM ACT’ TO BE DELIVERED TO BUYER HAVE BEEN RECEIVED BY BUYER AT LEAST SEVEN DAYS PRIOR TO BUYER'S EXECUTION OF THIS CONTRACT, THIS CONTRACT IS OF NO FORCE OR EFFECT AND SHALL NOT BE BINDING ON ANY PARTY. THE ITEMS SO REQUIRED ARE: (1) A FLOOR PLAN OF THE UNIT, (2) THE DECLARATION AND AMENDMENTS THERETO, (3) THE ASSOCIATION'S ARTICLES OF INCORPORATION AND BYLAWS AND AMENDMENTS THERETO, (4) ANY GROUND LEASE, (5) ANY MANAGEMENT CONTRACT HAVING A TERM IN EXCESS OF ONE YEAR, (6) THE ESTIMATED OR ACTUAL BUDGET FOR THE CONDOMINIUM, (7) ANY LEASE OF RECREATIONAL OR OTHER FACILITIES THAT WILL BE USED ONLY BY THE UNIT OWNERS, (8) ANY LEASE OF RECREATIONAL OR OTHER FACILITIES THAT WILL OR MAY BE USED BY THE UNIT OWNERS WITH OTHERS, AND (9) A STATEMENT SETTING FORTH THE EXTENT OF THE SELLER'S COMMITMENT TO BUILD OR SUBMIT ADDITIONAL UNITS, ADDITIONAL RECREATIONAL OR OTHER FACILITIES, OR ADDITIONAL PROPERTY. A DATED, WRITTEN ACKNOWLEDGMENT OF RECEIPT OF ALL SAID ITEMS SIGNED BY THE BUYER SHALL BE PRIMA-FACIE EVIDENCE OF THE DATE OF DELIVERY OF SAID ITEMS.”
This paragraph shall apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.
(d) The items required to be furnished or made available to a prospective buyer under this Code section shall constitute a part of each covered contract; and no change may be made in any of such items which would materially affect the rights of the prospective buyer or the value of the unit without the approval of the prospective buyer except to the extent that such items by their own terms, by the express terms of such covered contract, or by the provisions of this article may be changed without the consent of any unit owner or prospective buyer.
(e) In addition to provisions elsewhere required, a covered contract shall include the following provisions:
(1) A caveat in boldface type or capital letters no smaller than the largest type on the page shall be placed upon the first page of the contract in the following words:
“ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING THE REPRESENTATIONS OF THE SELLER. FOR CORRECT REPRESENTATIONS, REFERENCE SHOULD BE MADE TO THIS CONTRACT AND THE DOCUMENTS REQUIRED BY CODE SECTION 44-3-111 OF THE ‘GEORGIA CONDOMINIUM ACT’ TO BE FURNISHED BY A SELLER TO A BUYER.”;
(2) If the contract applies to a condominium unit which is part of an expandable condominium, the contract shall contain within the text the following statement in boldface type or capital letters no smaller than the largest type in the text:
“THIS CONTRACT APPLIES TO A CONDOMINIUM UNIT WHICH IS PART OF AN EXPANDABLE CONDOMINIUM.”;
(3) If the contract applies to a condominium unit which includes a leasehold estate or estate for years in property and if, upon the expiration of such leasehold or estate, the unit will be deemed to have been withdrawn pursuant to subsection (c) of Code Section 44-3-81 or the condominium will be terminated, the contract shall contain within the text a statement in the following words in boldface type or capital letters no smaller than the largest type in the text:
“THIS CONTRACT IS FOR THE TRANSFER OF A CONDOMINIUM UNIT SUBJECT TO A LEASE THAT EXPIRES _____, AND THE LESSEE'S INTEREST WILL TERMINATE UPON EXPIRATION OF THE LEASE.”;
(4) If the contract applies to a condominium unit that is subject to a lien for rent payable under a lease of a recreational facility or other commonly used facility, the contract shall contain within the text a statement in the following words in boldface type or capital letters no smaller than the largest type in the text:
“THIS CONTRACT IS FOR THE TRANSFER OF A CONDOMINIUM UNIT THAT IS SUBJECT TO A LIEN FOR RENT PAYABLE UNDER A LEASE OF A RECREATIONAL FACILITY, AND FAILURE TO PAY THIS RENT MAY RESULT IN FORECLOSURE OF THE LIEN.”;
(5) If, but only if, any applicable statute, ordinance, rule, or regulation requires, permits, or provides for the issuance of a certificate of occupancy by any officer, department, or agency of any governmental entity, the contract shall contain an express obligation on the part of the seller to furnish to the buyer at or prior to closing a true, correct, and complete copy of a duly issued certificate of occupancy covering the unit which is the subject matter of the covered contract unless the buyer executes a separate agreement at or before closing setting forth that the contract applies to a condominium unit for which the seller is not obligated to obtain a certificate of occupancy before conveyance of the unit to the buyer and such agreement contains the following statement in at least 14-point boldface type or capital letters:
“THE SELLER IS NOT OBLIGATED TO OBTAIN A CERTIFICATE OF OCCUPANCY BEFORE CONVEYANCE OF THE UNIT TO THE BUYER. THE LACK OF A CERTIFICATE OF OCCUPANCY SHALL NOT EXCUSE THE BUYER FROM ANY OBLIGATION TO PAY ASSESSMENTS TO THE ASSOCIATION.”; and
(6) If the contract applies to a condominium unit which is part of a conversion condominium, the contract shall contain within the text the following statement in boldface type or capital letters no smaller than the largest type in the text:
“THIS CONTRACT APPLIES TO A CONDOMINIUM UNIT WHICH IS PART OF A CONVERSION CONDOMINIUM.”
This paragraph shall not apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.
(f) If any condominium unit is offered for sale prior to the completion of the construction or remodeling of that unit or of improvements which shall constitute common elements, the seller shall make available to each prospective buyer for his inspection at a place convenient to the site a copy of the existing plans and specifications for the construction or remodeling of that unit and of the improvements which shall constitute common elements, whichever is not then complete.
(g) Any sales brochures describing the condominium and the units to be sold shall include a description and location of the recreational facilities proposed to be provided by the seller, the parking facilities, and other commonly used facilities together with a statement indicating:
(1) Which of the facilities will be owned by the unit owners as part of the common elements and which of the facilities will be owned by others;
(2) Whether, with respect to each facility so shown, the seller is obligated to complete the same; and
(3) The limitations or conditions, if any, on the seller's obligation to complete the same.
A caveat in boldface type or capital letters no smaller than the largest type of text material shall be conspicuously placed on the inside front cover of the sales brochure or on the first page containing text material or shall be otherwise conspicuously displayed and shall contain the following words:
“ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING REPRESENTATIONS OF THE SELLER. FOR CORRECT REPRESENTATIONS, REFERENCE SHOULD BE MADE TO THIS BROCHURE AND TO THE DOCUMENTS REQUIRED BY CODE SECTION 44-3-111 OF THE ‘GEORGIA CONDOMINIUM ACT’ TO BE FURNISHED BY THE SELLER TO A BUYER.”
(h) If condominium units are sold subject to a lease, all written or printed advertising of the units shall contain a statement in the following words in boldface type or capital letters no smaller than the largest type in the context where used:
“THESE CONDOMINIUM UNITS WILL BE TRANSFERRED SUBJECT TO A LEASE.”
(i) Any person who, in reasonable reliance upon any false or misleading material statement or information published by or under authority from the seller in advertising and promotional materials, including, but not limited to, the items required to be furnished by this Code section, brochures, and newspaper advertising, or who, without having been furnished with all of the information required to be furnished by this Code section, pays anything of value toward the purchase of a condominium unit located in this state shall be entitled to bring an action against the seller for damages under this Code section at any time prior to the expiration of one year after the date upon which the last of the events described in paragraphs (1) through (5) of this subsection shall occur:
(1) The closing of the transaction;
(2) The first issuance by the applicable governmental authority of a certificate of occupancy or other evidence of sufficient completion of construction of the building containing the unit to allow lawful occupancy of the unit. In counties or municipalities in which certificates of occupancy or other evidence of completion sufficient to allow lawful occupancy are not customarily issued, for the purpose of this Code section, evidence of lawful occupancy shall be deemed to have been given or issued upon the date that such lawful occupancy of the unit may first be allowed under prevailing applicable laws, ordinances, or statutes;
(3) The completion of the common elements and any recreational facilities, whether or not the same are common elements, which the seller is obligated to complete or to provide under the terms of the written contract for the sale of the unit;
(4) As to claims relating to the common elements and other portions of the condominium which are the responsibility of the association to maintain, the date upon which the declarant's right to control the association terminates as provided in Code Section 44-3-101; or
(5) In the event there shall not be a written contract for the sale of the unit, then the completion of the common elements and such recreational facilities, whether or not the same are common elements, which the seller would be obligated to complete under any rule of law applicable to the seller's obligation.
(j) Under no circumstances shall a cause of action created or recognized under this Code section survive for a period of more than five years after the closing of the transaction. Any person who has a right of action for damages as provided in this subsection shall have the additional right to rescind any contract for the purchase of a condominium unit at any time prior to the closing of the transaction. In any action for relief under this Code section, the prevailing party shall be entitled to recover reasonable attorney's fees.
(k) Willful violation of any of the requirements of this Code section by the declarant, the seller, any sales agent or broker, or any other person shall constitute a misdemeanor.
(a) Any deposit or other payment made prior to closing with respect to the first bona fide sale of each residential condominium unit for residential occupancy by the buyer, any member of the buyer's family, or any employee of the buyer shall be held in escrow until it is delivered at closing, delivered to the seller in accordance with subsection (b) of this Code section, or delivered to the person or persons entitled thereto upon breach of the contract for the sale. Such escrow funds shall be deposited in a separate account designated for this purpose; provided, however, that, in the event any such deposit is held by a real estate broker licensed under the laws of this state, such funds may be placed in such broker's escrow account instead of a separately designated account.
(b) If the contract for sale of the condominium unit so provides and the purchase price of the condominium unit is not less than $150,000.00, the seller may withdraw escrow funds in excess of 1 percent of the purchase price from the escrow account required by subsection (a) of this Code section when the construction of improvements has commenced. The seller shall only use the funds in the actual construction and development of the condominium property in which the unit to be sold is located. However, no part of these funds may be used for salaries, commissions, expenses of real estate licensees, or advertising purposes. A contract which permits use of the advance payments for these purposes shall be initialed by the buyer and include the following caveat in boldfaced type or capital letters no smaller than the largest type on the first page of the contract: ANY PAYMENT IN EXCESS OF 1 PERCENT OF THE PURCHASE PRICE MADE TO THE SELLER PRIOR TO CLOSING PURSUANT TO THIS CONTRACT MAY BE USED FOR CONSTRUCTION PURPOSES BY THE SELLER.
(a) This article shall apply to all property which is submitted to this article and shall also apply to any condominium created prior to October 1, 1975, pursuant to the “Apartment Ownership Act” if the instruments creating such condominium are amended in accordance with their terms in order to submit the condominium to this article.
(b) Existing condominiums created pursuant to the “Apartment Ownership Act” may amend the instruments creating them in certain respects in order to avail themselves of this article; provided, however, that any amendment must conform the instrument or instruments creating the condominium to this article in all necessary respects and the condominium shall thereafter be deemed to be submitted to this article. No condominium shall be established under the “Apartment Ownership Act” on or after October 1, 1975. Nothing contained in this article shall be construed to affect the validity of any provision of any instrument recorded prior to October 1, 1975.
(a) No zoning, subdivision, building code, or other real estate use law, ordinance, or regulation shall prohibit the condominium form of ownership or impose any requirement upon a condominium which it does not impose upon a physically identical development under a different form of ownership. No subdivision law, ordinance, or regulation shall apply to any condominium or to any subdivision of any convertible space or unit. Except as stated in this Code section, no provision of this article invalidates or modifies any provision of any zoning, subdivision, building code, or other real estate use law, ordinance, or regulation; and nothing contained in this Code section shall be construed to amend, supersede, or invalidate any provision of Article 1 of this chapter nor shall Code Section 44-3-92 be construed to override any lawful density requirement imposed by any zoning, building, or land use law, ordinance, or regulation. This subsection shall apply to any condominium created on or after July 1, 1980, or to the expansion of any such condominium.
(b) No subdivision law, ordinance, or regulation shall apply to any subdivision of any convertible space or unit as defined in this article. Notwithstanding the foregoing provisions of this subsection, however, nothing contained in this subsection shall be construed to amend, repeal, supersede, or invalidate any provision of Article 1 of this chapter nor shall Code Section 44-3-92 be construed to override any lawful density requirement imposed by any zoning, building, or land use law, ordinance, or regulation. This subsection shall apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.
(c) No subdivision law, ordinance, or regulation shall apply to the additional property of an expandable condominium for so long as the additional property may be added to the expandable condominium in accordance with the provisions of this article and the declaration. If the additional property is not deemed separate from the submitted property under any zoning, land use, subdivision, building, or life safety law, code, regulation, or ordinance at the time of the establishment of the condominium, the additional property shall not be deemed separate from the submitted property under any zoning, land use, subdivision, building, or life safety law, code, regulation, or ordinance so long as the additional property may be added by the declarant to the expandable condominium in accordance with the provisions of this article and the declaration.
The provisions of this article and of condominium instruments recorded pursuant thereto shall be liberally construed in favor of the valid establishment of a condominium pursuant to this article with respect to the submitted property. Substantial compliance with the requirements of this article for the establishment of a condominium shall suffice to bring property described in condominium instruments recorded pursuant to this article within the purview and application of this article; and any defects in such instruments or want of conformity with this article may be cured by an amendment thereto duly executed by the association and recorded or, upon application of any unit owner, with notice to the declarant, the association, and all other unit owners, by decree of the court.
The limitations provided in subsection (b) and in paragraphs (1), (2), and (4) of subsection (d) of Code Section 44-5-60 shall not apply to any covenants contained in any condominium instrument created pursuant to this article.
(a) Except as otherwise set forth in this Code section, the creation of a subcondominium shall not limit the application of this article in its entirety to such subcondominium.
(b) To the extent permitted in the condominium instruments, a condominium unit may be submitted by the owner thereof to a subcondominium and such owner shall thereafter be deemed the declarant, as such term is defined in paragraph (13) of Code Section 44-3-71, of such subcondominium.
(c) Upon the creation of a subcondominium:
(1) No tax or governmental assessment shall be levied against the unit as a whole but instead shall only be levied on the subunits;
(2) The subassociation shall represent and be responsible for acting on behalf of the subunit owners in discharging the rights and obligations of the unit owner as a member of the master association, including, without limitation, voting the interests of the unit in the master association and paying assessments owing on the unit to the master association;
(3) The insurance required in paragraph (1) of Code Section 44-3-107 may be obtained by either the subassociation or the master association for the condominium in which the subcondominium is a unit;
(4) No lien for labor or services performed or materials furnished in the improvement of the unit shall be filed against the subcondominium as a whole but shall only be filed against the subunits, and such lien may be discharged by the owner of any subunit in the same manner provided in subsection (d) of Code Section 44-3-95;
(5) If a subassociation has been created for property affected by an eminent domain proceeding, no eminent domain action shall be brought against the subassociation as a whole but only against the subunit owners thereof; and
(6) No description of a subunit shall be deemed to be vague, uncertain or otherwise insufficient if the description complies with Code Section 44-3-73.
(d) The description of submitted property or additional property to a subcondominium required by this article shall be valid if described by a legal description by metes and bounds or by a description of a unit in a master condominium in the manner provided for in Code Section 44-3-73.
(e) All sums lawfully assessed by a master association against a subassociation shall have the same effect as provided in subsection (a) of Code Section 44-3-109.
The recording of the declaration for a subcondominium pursuant to this article shall constitute record notice of the existence of the lien, and no further recordation of any claim of lien for assessments shall be required.
(f) In the event any lien becomes effective against a subunit as provided in subsection (e) of this Code section, the subassociation may remove that lien from the subunits by:
(1) The payment of the amount attributable to the subunits, or
(2) Bonding of the amount assessed against the subassociation
or any subunit owner may remove that lien from his or her subunit by the payment of the amount attributable to his or her subunit. The amount shall be computed by reference to the liability for common expenses pertaining to that condominium unit pursuant to subsection (c) of Code Section 44-3-80. Subsequent to the payment, discharge, or other satisfaction of such amount, the subunit owner of that subunit shall be entitled to have that lien released as to his or her subunit in accordance with applicable provisions of law, and notwithstanding anything to the contrary in Code Sections 44-3-80 and 44-3-109, the master association shall not assess or have a valid lien against that subunit for any portion of the common expenses incurred by the master association in connection with that lien.
(g) Not less than 30 days after notice is sent by certified mail or statutory overnight delivery, return receipt requested, to the subunit owner both at the address of the subunit and at any other address or addresses which the subunit owner may have designated to the master association in writing, the lien of the master association may be foreclosed by the master association by an action, judgment, and foreclosure in the same manner as other liens for the improvement of real property, subject to superior liens or encumbrances, but any such court order for judicial foreclosure shall not affect the rights of holders of superior liens or encumbrances to exercise any rights or powers afforded to them under their security instruments. The notice provided for in this subsection shall specify the amount of the assessments then due and payable together with authorized late charges and the rate of interest accruing thereon. No foreclosure action against a lien arising out of this subsection shall be permitted unless the amount of the lien is at least $2,000.00. Unless prohibited by the master condominium instruments, the master association shall have the power to bid on the subunit at any foreclosure sale and to acquire, hold, lease, encumber, and convey the same. The lien for assessments shall lapse and be of no further effect, as to assessments or installments thereof, together with late charges and interest applicable thereto, four years after the assessment or installment first became due and payable.
(h) Any subunit owner, mortgagee of a subunit, person having executed a contract for the purchase of a subunit, or lender considering the loan of funds to be secured by a subunit shall be entitled upon request to a statement from the subassociation or its management agent setting forth the amount of assessments past due and unpaid together with late charges and interest applicable owed by the subassociation to the master association. If the subassociation or its management agent states an amount less than the amount actually owed by the subassociation to the master association, the lien created by Code Section 44-3-109 for any amounts in excess of the stated amount shall be subordinate to the lien of any first priority mortgage covering the subunit.
(i) In addition to the documents required to be furnished to the prospective buyer under subsection (b) of Code Section 44-3-111, if the covered contract applies to a condominium unit which is part of a subcondominium, the following shall be provided to the prospective buyer:
(1) A copy of the declaration for the master condominium, and a copy of each amendment thereto; and
(2) A copy of the articles of incorporation and bylaws of the master association, and of each amendment to either.
This article shall be known and may be cited as the “Georgia Time-Share Act.”
The purposes of this article are to:
(1) Give statutory recognition to real property timesharing in this state;
(2) Regulate developers of time-share estate and time-share use projects located in this state and outside this state when offered for sale in this state;
(3) Require that developers of time-share projects:
(A) Make certain disclosures to purchasers and prospective purchasers through the use of a public offering statement;
(B) Deposit trust funds with an escrow agent;
(C) Utilize only licensed real estate brokers as sales agents if required by Chapter 40 of Title 43; and
(D) Comply with promotional advertising standards;
(4) Establish operating standards for time-share project managing agents and exchange programs operating in this state; and
(5) Provide for sanctions for violations of any provisions of this article which will permit:
(A) Courts of competent jurisdiction to impose fines or imprisonment for misdemeanors and felonies; and
(B) A claim for appropriate relief by any person adversely affected.
As used in this article, the term:
(1) “Agent” means a person authorized by the developer to act for such developer in offering to the public or managing time-share intervals including but not limited to employees or independent contractors of the developer, managing agents, sales agents, and escrow agents.
(2) “Conspicuous statement” means a statement in boldface and conspicuous type of at least ten points, such statements always being larger than all other statements, except for other conspicuous statements, in the body of the document in which they are required.
(3) “Developer” means, in the case of any given property, any person or entity which is in the business of creating or which is in the business of selling its own time-share intervals in any time-share program. This definition shall not mean a person acting solely as a sales agent.
(4) “Developer control period” means the period of time during which the developer or managing agent selected by the developer may manage the time-share program and the units in the time-share program.
(5) “Development,” “project,” or “property” means all of the real property subject to a project instrument and which contains more than one unit.
(6) “Escrow agent” means a licensed real estate broker, an attorney who is a member of the State Bar of Georgia, a title company, or a banking institution or savings and loan company having trust powers and located in this state who is entrusted with the deposit of trust funds with instructions to carry out the provisions of an agreement or contract.
(7) “Exchange company” means any person owning or operating an exchange program.
(8) “Exchange program” means any arrangement whereby owners may exchange occupancy rights with persons owning other time-share intervals or units or other rights of possession; provided, however, that an exchange program shall not exist if all of the occupancy rights which may be exchanged are in the same time-share property.
(9) “Managing agent” means a person who undertakes the duties, responsibilities, and obligations of the management of a time-share program.
(10) “Multilocation developer” means a developer creating or selling its own time-share intervals in a multilocation plan.
(11) “Multilocation plan” means a time-share plan respecting more than one time-share property pursuant to which owners may or may not obtain use rights in a specific time-share property and may, by reservation or other similar procedure, become entitled to occupy time-share units in more than one time-share property.
(12) “Offering” means any offer to sell, solicitation, inducement, or advertisement whether by radio, television, newspaper, magazine, or mail whereby a person is given an opportunity to acquire a time-share interval.
(12.1) “Owners' association” means an association made up of all owners of time-share intervals in a time-share program.
(13) “Person” means one or more natural persons, corporations, partnerships, associations, trusts, other entities, or any combination thereof.
(14) “Project” means development.
(15) “Project instrument” means one or more recordable documents applicable to the whole project by whatever name denominated, containing restrictions or covenants regulating the use, occupancy, or disposition of an entire project including any amendments to the document excluding any law, ordinance, or governmental regulation.
(16) “Property” means development.
(17) “Public offering statement” means a written statement given to prospective purchasers by the developer or the developer's agent disclosing such information about the time-share project as required by this article.
(18) “Purchaser” means any person other than a developer or lender who acquires an interest in a time-share interval.
(19) “Sales agent” means a person who for another, for a fee, commission, or any other valuable consideration or with the intent or expectation of receiving the same from another, negotiates or attempts to negotiate the sale or lease of a time-share interval in a time-share program.
(20) “Sales agreement” means that contract, agreement, lease, or other written instrument by which a purchaser contracts to acquire or acquires, in the event there is no contract to acquire, an interest in a time-share interval.
(21) “Time-share estate” means an ownership or leasehold interest in real property divided into measurable chronological periods, including real property interests held in irrevocable trust wherein all owners of the time-share program or the owners' association of the time-share program are express beneficiaries of such trust and the trustee is independent of the developer; provided, however, that if such real property interests are held in trust, conveyance of the property to the trust shall be free of all financial liens and encumbrances or shall include a recorded nondisturbance agreement.
(22) “Time-share instrument” means any document, by whatever name denominated, creating or regulating time-share programs excluding any law, ordinance, or governmental regulation.
(23) “Time-share interval” means a time-share estate or a time-share use.
(24) “Time-share program” means any arrangement for time-share intervals in a time-share project whereby the use, occupancy, or possession of real property has been made subject to either a time-share estate or time-share use whereby such use, occupancy, or possession circulates among purchasers of the time-share intervals according to a fixed or floating time schedule on a periodic basis occurring annually over any period of time in excess of one year in duration.
(25) “Time-share project” means any real property that is subject to a time-share program.
(26) “Time-share use” means any contractual right of exclusive occupancy which does not fall within the definition of a time-share estate including, without limitation, a vacation license, prepaid hotel reservation, club membership, limited partnership, or vacation bond.
(27) “Unit” means the real property or real property improvement in a project which is divided into time-share intervals.
(a) As used in this Code section, the term:
(1) “Private residence club” means an improvement located on real property, including, but not limited to, a single-family residence, the title to which is held by a maximum of eight individuals as tenants in common in fee simple or by a limited liability company containing not greater than eight members, and the use of such improvement or residence includes, without limitation, exclusive occupancy for certain time periods which are determined among the titleholders or limited liability company members by project instrument, including, but not limited to, a declaration of restrictive covenants, a contract, or otherwise. A private residence club may or may not be located in a private residence club development.
(2) “Private residence club development” means a development of at least two private residence clubs in which the titleholders or members of the limited liability company, as respects to each private residence club, contractually agree by project instrument, contract, or otherwise to permit occupancy for certain time periods to the titleholders or members of the limited liability company as exist with respect to any or all of the private residence clubs in the private residence club development.
(b) Neither a private residence club nor a private residence club development shall be considered a time-share estate, time-share program, time-share project, or time-share use under this article, and this article shall not be applicable to private residence clubs or private residence club developments; provided, however, that, notwithstanding the foregoing, if there exists a restrictive covenant on real estate that restricts or prohibits time-share estates, time-share programs, time-share projects, or time-share uses, such restrictive covenants shall equally restrict or prohibit a private residence club and a private residence club development unless such restrictive covenant expressly states that it does not apply to private residence clubs and private residence club developments. No zoning, subdivision, or building code or other real estate use ordinance or regulation shall prohibit a private residence club form of ownership or impose any requirement upon a private residence club which it does not impose upon a physically identical improvement or development under a different form of ownership. No subdivision law, ordinance, or regulation shall apply to any division of an improvement, including a single-family residence, into a private residence club or private residence club development.
(a) A time-share estate is an estate in real property and has the character and incidents of an estate in fee simple at common law or estate for years, if a leasehold, except as expressly modified by this article. This subsection shall supersede any contrary rule at common law.
(b) A document transferring or encumbering a time-share estate in real property shall not be rejected for recordation because of the nature or duration of that estate or interest, provided there is compliance with all requirements necessary to make an instrument recordable.
(c) For purposes of title, each time-share estate constitutes a separate estate or interest in property.
(d) For purposes of local real property taxation, each time-share unit, other than a unit operated for time-share use, shall be valued in the same manner as if such unit were owned by a single taxpayer. The total cumulative purchase price paid by the time-share owners for a unit shall not be utilized by the commissioner of revenue or other local assessing officers as a factor in determining the assessed value of such unit. A unit operated as a time-share use, however, may be assessed the same as other income-producing and investment property. Tax records in a time-share unit shall be in the name of the association or the managing agent.
No zoning, subdivision, or building code or other real estate use ordinance or regulation shall prohibit the time-share interval form of ownership or use or impose any requirement upon the time-share project which it does not impose upon a physically identical improvement or development under a different form of ownership. No subdivision law, ordinance, or regulation shall apply to any division of an improvement or unit into a time-share project or time-share intervals.
(a) A time-share program may be created in any unit, unless expressly prohibited by the project instruments.
(b) No action for partition of a unit may be maintained except as permitted by the time-share instrument.
(a) Project instruments and time-share instruments creating time-share estates located in the State of Georgia shall be recorded in the superior court of the county in which the project is located and shall contain the following:
(1) The name of the county in which the property is situated;
(2) The legal description, street address, or other description sufficient to identify the property;
(3) Identification of time periods by letter, name, number, or combination thereof;
(4) Identification of time-share estates and, where applicable, the method whereby additional time-share estates may be created;
(5) The formula, fraction, or percentage of the common expenses and any voting rights assigned to each time-share estate and, where applicable, to each unit in a project that is not subject to the time-share program;
(6) Any restrictions on the use, occupancy, alteration, or alienation of time-share intervals; and
(7) The ownership interest, if any, in personal property and provisions for care and replacement.
(b) For time-share projects located outside the State of Georgia, project instruments therefor shall be recorded as required by the law of the jurisdiction in which such time-share project is located.
The time-share instruments for a time-share estate program shall prescribe reasonable arrangements for management and operation of the time-share program and for the maintenance, repair, and furnishing of units, which shall include the following:
(1) Creation of an association organization of time-share estate owners;
(2) Adoption of bylaws for organizing and operating the association organization;
(3) Payment of costs and expenses of operating the time-share program and of owning and maintaining the units;
(4) Employment and termination of employment of the managing agent for the association organization;
(5) Preparation and dissemination to owners of an annual budget and of operating statements and other financial information including, but not limited to, the current status of payments under any security deed, contracts for improvements, or other encumbrances concerning the time-share program;
(6) Adoption of standards and rules of conduct for the use and occupancy of units by owners;
(7) Collection of assessments from owners to defray the expenses of management of the time-share program and maintenance of the units;
(8) Comprehensive general liability insurance for death, bodily injury, and property damage arising out of or in connection with the use of units by owners, their guests, and others and extended coverage casualty insurance;
(9) Methods for providing compensating use periods or monetary compensation to an owner if a unit cannot be made available for the period to which the owner is entitled by schedule or by confirmed reservation;
(10) Procedures for imposing a monetary penalty or suspension of an owner's rights and privileges in the time-share program for failure of the owner to comply with provisions of the time-share instruments or the rules of the association organization with respect to the use of the units. Under these procedures, an owner must be given notice and the opportunity to refute or explain the charges against him or her in person or in writing to the governing body of the association organization before a decision to impose discipline is rendered;
(11) Employment of attorneys, accountants, and other professional persons as necessary to assist in the management of the time-share program and the units; and
(12) Procedures for the developer to obtain the consent of a majority of the existing owners of the time-share estates before encumbering the time-share project for the purpose of making additional improvements to the project.
(a) The time-share instruments for a time-share estate program may provide for a developer control period.
(b) If the time-share instruments for a time-share estate program provide for the establishment of a developer control period, they shall include provisions for the following:
(1) Termination of the developer control period by action of the association;
(2) Termination of contracts for goods and services for the time-share program or for units in the time-share program entered into during the developer control period; and
(3) A regular accounting by the developer to the association as to all matters that significantly affect the interests of owners in the time-share program including, but not limited to, the current status of payments under any security deed, contracts for improvements, or other encumbrances.
Project instruments and time-share instruments creating time-share uses shall contain the following:
(1) Identification by name of the time-share project and street address where the time-share project is situated;
(2) Identification of the time periods, type of units, and the units that are in the time-share program and the length of time that the units are committed to the time-share program; and
(3) In case of a time-share project, identification of which units are in the time-share program and the method whereby any other units may be added, deleted, or substituted.
The time-share instruments for a time-share use program shall prescribe reasonable arrangements for management and operation of the time-share program and for the maintenance, repair, and furnishing of units which shall include the following:
(1) Standards and procedures for upkeep, repairs, and interior furnishing of units;
(2) Adoption of standards and rules of conduct governing the use and occupancy of units by owners;
(3) Payment of the costs and expenses of operating the time-share program and owning and maintaining the units;
(4) Selection of a managing agent to act on behalf of the developer;
(5) Preparation and dissemination to owners of an annual budget and of operating statements and other financial information concerning the time-share program;
(6) Procedures for establishing the rights of owners to the use of units by prearrangement or under a first reserved, first served priority system;
(7) Organization of a management advisory board or board of directors consisting of time-share use owners including an enumeration of rights and responsibilities of the board;
(8) Procedures for imposing and collecting assessments or use fees from time-share use owners as necessary to defray costs of management of the time-share program and in providing materials and services to the units;
(9) Comprehensive general liability insurance for death, bodily injury, and property damage arising out of or in connection with the use of units by time-share use owners, their guests, and others and extended coverage casualty insurance;
(10) Methods for providing compensation use periods or monetary compensation to an owner if a unit cannot be made available for the period to which the owner is entitled by schedule or by a confirmed reservation;
(11) Procedures for imposing a monetary penalty or suspension of an owner's rights and privileges in the time-share program for failure of the owner to comply with the provisions of the time-share instruments or the rules established by the developer with respect to the use of the units. The owner shall be given notice and the opportunity to refute or explain the charges in person or in writing to the management advisory board before a decision to impose discipline is rendered;
(12) Annual dissemination to all time-share use owners by the developer or by the managing agent of a list of the names and mailing addresses of all current time-share use owners in the time-share program;
(13) Procedures for the developer to obtain the consent of a majority of the existing owners of the time-share uses before encumbering the time-share project for the purpose of making additional improvements to the project;
(14) A definition of what shall constitute the facilities being available for use; and
(15) An owners' association shall act as a fiduciary to the purchasers of a time-share program.
In the event that:
(1) Time-share intervals in a time-share program have been sold in this state to a resident of this state prior to July 1, 1983;
(2) The time-share instruments and project instruments creating such program do not provide for or contain the provisions required by Code Sections 44-3-166 through 44-3-170; and
(3) The developer does not control a sufficient number of votes in the time-share program to amend the time-share instruments and project instruments to provide for the inclusion of the provisions required by Code Sections 44-3-166 through 44-3-170 without the vote of any other time-share interval owners,
then the developer shall include in the public offering statement a listing of those provisions required by Code Sections 44-3-166 through 44-3-170 but not included in the instruments.
(a) A public offering statement must be provided to each purchaser of a time-share interval. Prospective purchasers receiving a copy of the public offering statement shall sign a statement acknowledging receipt of the public offering statement and such receipt shall be kept at the principal office of the developer for three years from the date of receipt.
(1) The public offering statement must contain or fully and accurately disclose the following information:
(A) The name of the developer, the principal address of the developer, the address of the time-share intervals offered in the statement, and a description of the developer's ownership interest in the time-share project;
(B) The nature of the interest in the time-share interval being offered whether it involves real property ownership, leasehold interest, right to use or occupy the facility, or some other interest being offered;
(C) A general description of the units including, without limitation, the developer's contemplated schedule of commencement and completion of all buildings, units, and amenities or, if completed, a statement that they have been completed;
(D) As to all units offered by the developer in the same time-share project:
(i) The types and number of units;
(ii) Identification of units that are subject to time-share intervals; and
(iii) The estimated number of units that may become subject to time-share intervals;
(E) A brief description of the project;
(F) Any current budget or a projected budget for the time-share intervals for one year after the date of the first transfer to a purchaser. The budget must include, without limitation:
(i) A statement of the amount or a statement that there is no amount included in the budget as a reserve for repairs and replacement;
(ii) The projected common expense liability, if any, by category of the expenditures for the time-share intervals;
(iii) The projected common expense liability for all time-share intervals; and
(iv) A statement of any services not reflected in the budget that the developer provides or expenses that he or she pays;
(G) Any initial or special fee for the use of the unit or amenities due from the purchaser at closing together with a description of the purpose and method of calculating the fee;
(H) A description of any liens, defects, or encumbrances on or affecting the title to the time-share intervals;
(I) A description of any financing offered by the developer;
(J) A statement of any pending actions material to the time-share intervals of which a developer has actual knowledge;
(K) Any restraints on alienation of any number or portion of any time-share intervals;
(L) A description of the insurance coverage or a statement that there is no insurance coverage provided for the benefit of time-share interval owners including specific statements on the amount of comprehensive general liability insurance and extended coverage casualty insurance;
(M) Any current or expected fees or charges to be paid by time-share interval owners for the use of any facilities related to the property;
(N) Whether financial arrangements have been provided for and with whom financial arrangements have been made for the completion of all promised or proposed improvements and the proposed date of completion;
(O) The extent to which a time-share unit may become subject to a tax or other lien arising out of claims against other owners of the same unit;
(P) A conspicuous statement on the cover page as follows:
“YOU MAY CANCEL WITHOUT PENALTY OR OBLIGATION ANY SALES AGREEMENT WHICH YOU HAVE SIGNED FOR THE PURCHASE OR LEASE OF A TIME-SHARE INTERVAL WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER SIGNING ANY SALES AGREEMENT AND RECEIVE A REFUND. IF THIS PUBLIC OFFERING STATEMENT WAS NOT GIVEN TO YOU BEFORE YOU SIGNED ANY SALES AGREEMENT, YOU MAY CANCEL THE SALES AGREEMENT WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER YOUR RECEIPT OF THIS PUBLIC OFFERING STATEMENT AND RECEIVE A REFUND. YOU MAY NOT GIVE UP OR WAIVE THIS RIGHT TO CANCEL. IF YOU DECIDE TO CANCEL A SALES AGREEMENT, YOU MUST NOTIFY THE DEVELOPER IN WRITING WITHIN THE CANCELLATION PERIOD OF YOUR INTENT TO CANCEL BY SENDING NOTICE BY CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, TO (insert the name and address of the developer or the developer's agent). YOUR NOTICE WILL BE EFFECTIVE ON THE DATE YOU MAIL IT.”;
(Q) When a time-share use is offered, a conspicuous statement as follows:
“YOU MAY CANCEL ANY SALES AGREEMENT WHICH YOU HAVE SIGNED FOR THE PURCHASE OF A TIME-SHARE USE AT ANY TIME THE FACILITY IS NOT MADE AVAILABLE FOR USE ACCORDING TO AGREED UPON TERMS. YOU MAY NOT GIVE UP OR WAIVE THIS RIGHT TO CANCEL.”;
(R) A schedule for refunding any funds due the purchaser if the time-share project is not completed or if the purchaser exercises cancellation rights;
(S) The name and address of the escrow agent;
(T) A conspicuous statement as follows:
“ANY QUESTIONS ABOUT THE LEGAL ASPECTS OF THE PURCHASE OR LEASE OF A TIME-SHARE INTERVAL SHOULD BE REFERRED TO AN ATTORNEY.”;
(U) A conspicuous statement on the cover page as follows:
“PURCHASER SHOULD READ THIS DOCUMENT BEFORE SIGNING ANYTHING.”;
(V) (i) Except as otherwise provided in division (ii) of this subparagraph, a conspicuous statement as follows:
“THIS IS A REAL PROPERTY TRANSACTION. YOU OR YOUR ATTORNEY SHOULD REVIEW THE DOCUMENTS RELATING TO THIS TRANSACTION ON FILE IN THE SUPERIOR COURT OF THE COUNTY WHEREIN THE PROPERTY IS LOCATED.”
(ii) If the time-share project is located outside this state, then the conspicuous statement must read as follows:
“THIS IS A REAL PROPERTY TRANSACTION. YOU OR YOUR ATTORNEY SHOULD REVIEW THE DOCUMENTS RELATING TO THIS TRANSACTION ON FILE IN THE APPROPRIATE LAND RECORDS OF THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED.”; and
(W) A description of the exact procedure that will be used by the developer for closing sales of time-share intervals including, but not limited to, the procedures for conveying title to the time-share intervals, the procedures for delivery and recording of deeds, and the procedures for disbursing funds held by the escrow agent.
(2) If the owners of time-share intervals are offered an opportunity to become members of or to participate in any program for the exchange of occupancy rights among themselves or with the owners of time-share intervals of other time-share projects, or both, the public offering statement or a supplement delivered therewith must fully and accurately disclose the following information:
(A) The name and address of the exchange company;
(B) The names of all officers, directors, and shareholders owning 5 percent or more of the outstanding stock of the exchange company;
(C) Whether the exchange company or any of its officers or directors has any legal or beneficial interest in any developer or managing agent for any time-share project participating in the exchange program and, if so, the name and location of the time-share project and the nature of the interest;
(D) Unless the exchange company is also the developer or an affiliate, a statement that the purchaser's contract with the exchange company is a contract separate and distinct from the sales agreement;
(E) Whether the purchaser's participation in the exchange program is dependent upon the continued affiliation of the time-share project with the exchange program;
(F) Whether the purchaser's membership or participation, or both, in the exchange program is voluntary or mandatory;
(G) A complete and accurate description of the terms and conditions of the purchaser's contractual relationship with the exchange company and the procedure by which changes thereto may be made;
(H) A complete and accurate description of the procedure to qualify for and effectuate exchanges;
(I) A complete and accurate description of all limitations, restrictions, or priorities employed in the operation of the exchange program, including, but not limited to, limitations on exchanges based on seasonableness, unit size, or levels of occupancy, expressed in a conspicuous statement, and, in the event that such limitations, restrictions, or priorities are not uniformly applied by the exchange program, a clear description of the manner in which they are applied;
(J) Whether exchanges are arranged on a space-available basis and whether any guarantees of fulfillment of specific requests for exchanges are made by the exchange program;
(K) Whether and under what circumstances an owner, in dealing with the exchange company, may lose the use and occupancy of such owner's time-share interval in any properly applied for exchange without such owner being provided with substitute accommodations by the exchange company;
(L) The fees or range of fees for participation by owners in the exchange program, a statement whether any such fees may be altered by the exchange company, and the circumstances under which alterations may be made;
(M) The name and address of the site of each time-share property, accommodation, or facility which is participating in the exchange program;
(N) The number of units in each property participating in the exchange program which are available for occupancy and which qualify for participation in the exchange program, expressed within the following numerical groupings: 1-5, 6-10, 11-20, 21-50, and 51 and over;
(O) The number of owners with respect to each time-share project or other property which are eligible to participate in the exchange program expressed within the following numerical groupings: 1-100, 101-249, 250-499, 500-999, and 1,000 and over, and a statement of the criteria used to determine those owners who are currently eligible to participate in the exchange program;
(P) The disposition made by the exchange company of time-share intervals deposited with the exchange program by owners eligible to participate in the exchange program and not used by the exchange company in effecting exchanges;
(Q) The following information, which, except as provided in subparagraph (S) of this paragraph, shall be independently audited by a certified public accountant or accounting firm in accordance with the standards of the Accounting Standards Board of the American Institute of Certified Public Accountants and included in the public offering statement for each year no later than July 1 of the succeeding year, beginning no later than July 1, 1983:
(i) The number of owners eligible to participate in the exchange program. Such number shall disclose the relationship between the exchange company and owners as being either fee-paying or gratuitous in nature;
(ii) The number of time-share properties, accommodations, or facilities eligible to participate in the exchange program categorized by those having a contractual relationship between the developer or the association and the exchange company and those having solely a contractual relationship between the exchange company and owners directly;
(iii) The percentage of confirmed exchanges, which shall be the number of exchanges confirmed by the exchange company divided by the number of exchanges properly applied for, together with a complete and accurate statement of the criteria used to determine whether an exchange request was properly applied for;
(iv) The number of time-share intervals for which the exchange company has an outstanding obligation to provide an exchange to an owner who relinquished a time-share interval during the year in exchange for a time-share interval in any future year; and
(v) The number of exchanges confirmed by the exchange company during the year;
(R) A conspicuous statement to the effect that the percentage described in division (iii) of subparagraph (Q) of this paragraph is a summary of the exchange requests entered with the exchange company in the period reported and that the percentage does not indicate a purchaser's or owner's probabilities of being confirmed to any specific choice or range of choices, since availability at individual locations may vary; and
(S) The information required by this paragraph shall be accurate as of a date which is not more than 30 days prior to the date on which the information is delivered to the purchaser, except that the information required by subparagraphs (B), (C), (M), (N), (O), and (Q) of this paragraph shall be provided as of December 31 of the year preceding the year in which the information is delivered, except for information delivered within the first 180 days of any calendar year which shall be provided as of December 31 of the year preceding the year in which the information is delivered. All references in this Code section to the word “year” shall mean calendar year;
(3) A multilocation developer shall include in the public offering statement or a supplement delivered therewith the following information:
(A) A complete and accurate description of the procedure to qualify for and effectuate use rights in time-share units in the multilocation plan;
(B) A complete and accurate description of all limitations, restrictions, or priorities employed in the operation of the multilocation plan, including, but not limited to, a conspicuous statement of limitations on reservations, use or entitlement rights based on seasonableness, unit size, levels of occupancy or class of owner, and, in the event that such limitations, restrictions, or priorities are not uniformly applied by the multilocation plan, a clear description of the manner in which they are applied;
(C) Whether use is arranged on a space-available basis and whether any guarantees of fulfillment of specific requests for use are made by the multilocation developer;
(D) The name and address of the site of each time-share property included in the multilocation plan;
(E) The number of time-share units in each time-share property which are available for occupancy and, with respect to each such time-share unit, the interest, such as fee ownership, leasehold, or option to purchase, which the multilocation developer has therein; a statement of all relevant terms of the multilocation developer's interest if such interest is less than fee ownership; and whether the time-share unit may be withdrawn from the multilocation plan;
(F) The following information, which, except as provided in subparagraph (H) of this paragraph, shall be independently audited by a certified public accountant or accounting firm in accordance with the standards of the Accounting Standards Board of the American Institute of Certified Public Accountants and included in the public offering statement for each year on or before July 1 of the succeeding year beginning no later than July 1, 1983:
(i) The number of owners in the multilocation plan;
(ii) For each time-share property in the multilocation plan, the number of properly made requests for use of time-share units in such time-share property; and
(iii) For each time-share property, the percentage of owners who properly requested use of a time-share unit in such time-share property who received the right to use a time-share unit in such time-share property;
(G) A conspicuous statement to the effect that the percentages described in subparagraph (F) of this paragraph do not indicate a purchaser's or owner's probabilities of being able to use any time-share unit since availability at individual locations may vary; and
(H) The information required by this paragraph shall be provided as of a date which is no more than 30 days prior to the date on which the information is delivered to the purchaser, except that the information required by subparagraphs (D), (E), and (F) of this paragraph shall be provided as of December 31 of the year preceding the year in which the information is delivered, except for information delivered within the first 180 days of any calendar year which shall be provided as of December 31 of the year preceding the year in which the information is delivered.
(b) In the event an exchange company offers an exchange program directly to the purchaser or owner, the exchange company shall deliver to each purchaser or owner, prior to the execution of any contract between the purchaser or owner and the company offering the exchange program, the information set forth in paragraph (2) of subsection (a) of this Code section. The requirements of paragraph (2) of subsection (a) of this Code section shall not apply to any renewal of a contract between an owner and an exchange company.
(c) Each exchange company offering an exchange program to purchasers in this state must include the statement set forth in subparagraph (a)(2)(R) of this Code section on all promotional brochures, pamphlets, advertisements, or other materials disseminated by the exchange company which also contain the percentage of confirmed exchanges described in division (a)(2)(Q)(iii) of this Code section.
(a) An exchange company whose exchange program is offered to purchasers in connection with the offer or disposition of time-share intervals in this state shall, on or before July 1 of each year, file with the secretary of the association for the time-share program in which the time-share intervals are offered or disposed, the information required by paragraph (2) of subsection (a) of Code Section 44-3-172 with respect to the preceding year. If any of the information supplied fails to meet the requirements of this Code section, the district attorney or Attorney General may undertake enforcement action against the exchange company in accordance with the provisions of this article in either the superior court of the county wherein the time-share accommodations or facilities are located or in the Superior Court of Fulton County. No developer shall have any liability arising out of the use, delivery, or publication by the developer of any information provided to it by the exchange company pursuant to this Code section. Except as provided in this Code section, no exchange company shall have any liability with respect to (1) any representation made by the developer relating to the exchange program or exchange company, or (2) the use, delivery, or publication by the developer of any information relating to the exchange program or exchange company. An exchange company shall only be liable for written information provided to the developer by the exchange company. The failure of the exchange company to observe the requirements of this Code section, or the use by it of any unfair or deceptive act or practice in connection with the operation of the exchange program, shall be a violation of this article.
(b) A multilocation developer which offers or disposes of time-share intervals in this state shall, on or before July 1 of each year, file with the secretary of the association for the time-share program the information required by paragraph (3) of subsection (a) of Code Section 44-3-172 with respect to the preceding year. If at any time any of the information supplied fails to meet the requirements of this Code section, the district attorney or Attorney General may undertake enforcement action against the multilocation developer in accordance with the provisions of this article in either the superior court of the county wherein the time-share accommodations or facilities are located or in the Superior Court of Fulton County. The failure of a multilocation developer to observe the requirements of this Code section, or the use by it of any unfair or deceptive act or practice in connection with the operation of the exchange program, shall be a violation of this article.
(a) Before transfer of a time-share interval and no later than the date of any sales agreement, the developer shall provide the intended transferee with a copy of the public offering statement and any amendments and supplements thereto. The sales agreement is voidable by the purchaser for seven days, Sundays and holidays excepted, after receipt of the public offering statement or for seven days, Sundays and holidays excepted, after signing any sales agreement, whichever is later. Cancellation is without penalty or obligation, and all payments made by the purchaser before cancellation must be refunded within 30 days after receipt of the notice of cancellation.
(b) In addition to the rights of the developer provided in the sales agreement, up to seven days, Sundays and holidays excepted, after the signing of any sales agreement, the developer may cancel the sales agreement without penalty or obligation to either party. The developer shall return all payments made by the purchaser within 30 days after canceling the agreement and the purchaser shall return all materials received in good condition, reasonable wear and tear excepted.
(c) If a time-share use is being conveyed, a purchaser shall have the right to cancel the transaction at any time after the facilities are no longer available for use.
(d) The rights of cancellation provided for in subsections (a), (b), and (c) of this Code section shall not be waivable by any purchaser.
(e) Any sales agreement must contain a conspicuous statement as follows:
“YOU MAY CANCEL WITHOUT PENALTY OR OBLIGATION THIS SALES AGREEMENT FOR THE PURCHASE OR LEASE OF A TIME-SHARE INTERVAL WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER SIGNING AND RECEIVE A REFUND OF ANY FUNDS PAID. IF YOU DID NOT RECEIVE A PUBLIC OFFERING STATEMENT PRIOR TO SIGNING THIS SALES AGREEMENT, YOU MAY CANCEL THIS SALES AGREEMENT WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER RECEIPT OF A PUBLIC OFFERING STATEMENT. YOU MAY NOT GIVE UP OR WAIVE THIS RIGHT TO CANCEL. IF YOU DECIDE TO CANCEL, YOU MUST NOTIFY THE DEVELOPER IN WRITING WITHIN THE CANCELLATION PERIOD OF YOUR INTENT TO CANCEL BY SENDING NOTICE BY CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, TO (insert the name and address of the developer or the developer's agent). YOUR NOTICE WILL BE EFFECTIVE UPON THE DATE YOU SEND IT.”
(f) Prospective purchasers receiving a copy of the public offering statement shall sign a conspicuous statement acknowledging receipt of the public offering statement which shall be kept at the principal office of the developer for a period of three years from the date of receipt. Said statement shall read as follows:
“I HEREBY ACKNOWLEDGE THAT I HAVE RECEIVED THE PUBLIC OFFERING STATEMENT OF (insert name of project) ON (insert date) AND I UNDERSTAND THAT MY RIGHT TO CANCEL ANY SALES AGREEMENT TO PURCHASE A TIME-SHARE INTERVAL EXPIRES ON (insert date), WHICH IS SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER SIGNING ANY SALES AGREEMENT OR SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER RECEIPT OF THE PUBLIC OFFERING STATEMENT, WHICHEVER IS LATER.”
(a) A developer of a time-share program shall:
(1) Deposit with an escrow agent 100 percent of all funds which are received during the seven-day cancellation period provided for in this article. The deposit of such funds shall be evidenced by an executed escrow agreement between the escrow agent and the developer, the provisions of which shall include:
(A) That its purpose is to protect the purchaser's right to a refund if he or she cancels the sales agreement for a time-share interval within a seven-day cancellation period;
(B) That funds may be disbursed to the developer by the escrow agent from the escrow account only after expiration of the purchaser's seven-day cancellation period and in accordance with the sales agreement; and
(C) That the escrow agent may release funds to the developer from the escrow account only after receipt of a sworn statement from the developer that no cancellation notice was received before expiration of the seven-day period;
(2) Deposit with an escrow agent after the seven-day cancellation period 100 percent of all funds which are received from purchasers of time-share uses. The deposit of such funds shall be evidenced by an executed escrow agreement between the escrow agent and the developer, the provisions of which shall include:
(A) That its purpose is to protect the purchaser's right to a refund, at any time the accommodations or facilities are no longer available as provided in the sales agreement entered into by the developer and the purchaser in an amount provided for in subparagraph (B) of this paragraph;
(B) That funds may be disbursed to the developer by the escrow agent from the escrow account periodically in the ratio of the amount of time the purchaser has already used or had the right to use the accommodations or facilities of the time-share use at the time of the disbursement in relation to the total time sold to the purchaser; and
(C) That the escrow agent may release funds to the developer from the escrow account only after receipt of a statement signed by the purchaser indicating that such purchaser has used or has had the right to use a specific number of days out of the total time period purchased. If a purchaser refuses to sign such a statement when tendered, the developer may submit a sworn statement to the escrow agent that the purchaser used or had the right to use a specific number of days, but that the purchaser refused to sign a statement to that effect;
(3) Place 100 percent of all funds received from purchasers of such time-share intervals, after the seven-day cancellation periods have ended, in an escrow account when interests in real property are being sold, according to a sales agreement which will transfer title to the purchasers. The establishment of such an escrow account shall be evidenced by an executed escrow agreement between the escrow agent and the developer, the provisions of which shall include:
(A) That its purpose is to protect all deposits and payments made by a purchaser toward the purchase price until the deed is delivered to the purchaser, whether physically or by recording the same, or until the purchaser and developer enter into a sales agreement which will transfer title to the purchaser; and
(B) That funds may be disbursed to the developer by the escrow agent from the escrow account only after title has been delivered to the purchaser physically or delivered for recording to the clerk of the superior court in the county where the real property underlying the time-share project is located or at such other time as may be agreed upon in writing by the purchaser and developer. However, in the case of a time-share estate sold by agreement for deed, funds may only be disbursed to the developer after recording of the agreement for deed and, if necessary, a notice to creditors with secured interests in the property underlying the time-share project and, if the property is encumbered by a deed to secure debt or mortgage instrument, a nondisturbance instrument has been recorded in the public records of the county or counties in which the time-share is located; or alternatively, after the developer records a notice to the aforesaid creditors and obtains a release of lien for a time-share interval, funds may be disbursed pertaining to that time-share interval; and
(4) Place any funds escrowed pursuant to this Code section with an escrow agent who shall be one of the following: an attorney in this state, a bank or savings and loan company having trust powers in this state, a title company in this state, or a real estate broker in this state. In lieu of the foregoing, the funds may be escrowed in an account required by the jurisdiction in which the sale of the time-share took place. The developer must notify the purchaser of the name and address of the escrow agent or the name, address, and account number of the bank or savings and loan company where the developer maintains the funds. Maintenance of trust funds and disbursements by an escrow agent in another state must be in accordance with the provisions of this article. The escrow agreement shall authorize the purchaser or the purchaser's representative to examine said trust account.
(b) An escrow agent holding funds escrowed pursuant to this Code section may invest such escrowed funds in securities of the United States government, or any agency thereof, or in savings or time deposits in institutions insured by an agency of the United States government. The right to receive the interest generated by any such investments shall be as specified by a written agreement between the developer and the purchaser.
(c) Each escrow agent shall maintain separate books and records for each time-share project and shall maintain such books and records according to generally accepted accounting principles.
(a) If a developer enters into a sales agreement to sell a time-share interval and the construction, furnishing, and landscaping of the time-share project have not been substantially completed in accordance with the representations made by the developer in the disclosures required by this article, the developer shall deposit with an escrow agent all payments received by the developer from the purchaser towards the sales price until the project is substantially complete. Funds shall be released from escrow as follows:
(1) If a purchaser properly terminates the sales agreement pursuant to its terms or pursuant to this article, the funds shall be paid to the purchaser together with any interest earned;
(2) If the purchaser defaults in the performance of such purchaser's obligations under the sales agreement, the funds shall be paid to the developer together with any interest earned; or
(3) If the funds of a purchaser have not been previously disbursed in accordance with the provisions of this subsection, they may be disbursed to the developer in accordance with this article by the escrow agent upon substantial completion of the time-share project.
(b) In lieu of any escrows required by subsection (a) of this Code section, the purchasers shall have the discretion to accept in writing other financial assurances including, but not limited to, a performance bond or an irrevocable letter of credit in an amount equal to the cost to complete the time-share project.
(c) For the purpose of this Code section, “substantially completed” means that all amenities, furnishings, appliances, and structural components and mechanical systems of buildings are completed and provided as represented in the public offering statement and that the premises are ready for occupancy.
(a) Any time-share program registered under this article in which a public offering statement has been prepared shall not require registration under any of the following:
(1) Article 1 of this chapter;
(2) Chapter 5 of Title 10; or
(3) Any other state law which requires the preparation of a public offering statement or substantially similar document for distribution to purchasers.
(b) Any time-share program registered under this article that fails to restrict the price at which an owner may sell or exchange such owner's time-share interval shall not by virtue of such failure cause the time-share interval to become a security under Chapter 5 of Title 10; nor shall an exchange program offering such a time-share interval for exchange be construed to be offering a security under Chapter 5 of Title 10.
(a) In lieu of the public offering statement required by this article, the developer may give prospective purchasers a public offering statement or similar disclosure document which meets the requirements of the Federal Securities and Exchange Act of 1933 or, if the time-share project is located in another state, a public offering statement or similar disclosure document which that state may require to be prepared and provided to purchasers.
(b) A public offering statement need not be prepared or delivered in the case of:
(1) A transfer of a time-share interval by any time-share interval owner or user other than the developer or such developer's agent;
(2) A disposition pursuant to court order;
(3) A disposition by a government or governmental agency;
(4) A disposition by foreclosure or deed in lieu of foreclosure;
(5) A disposition of a time-share interval in a time-share project situated wholly outside this state, provided that all solicitations and negotiations took place wholly outside this state and the sales agreement was executed wholly outside this state;
(6) A gratuitous transfer of a time-share interval; or
(7) Group reservations made for 15 or more people as a single transaction between a hotel and travel agent or travel groups for hotel accommodations when deposits are made and held for more than three years in advance.
The developer shall immediately amend or supplement the public offering statement to report any material change in the information required by Code Section 44-3-172. As to any exchange program, the developer shall use the current written materials that are supplied to it for distribution to the time-share interval owners as it is received.
(a) Unless the purchaser expressly agrees in the sales agreement to accept such purchaser's interest subject to a lien or by assuming a lien prior to transferring a time-share interval other than by deed in lieu of foreclosure, the developer shall record or furnish to the purchaser releases of all liens affecting that time-share interval or shall provide a surety bond or insurance against the lien, as provided for liens on real estate in this state. In lieu of the foregoing, a lienholder may agree to repurchase in the amount agreed to by the parties but in no event less than the amount actually paid by the purchaser a purchaser's time-share interval in the event the lienholder comes into possession of the time-share project; or the lienholder may agree to allow the continued right of quiet enjoyment to the purchaser.
(b) Unless a time-share interval owner or such owner's predecessor in title agrees otherwise with the lienor, if a lien other than an underlying mortgage or security deed becomes effective against more than one time-share interval in a time-share project, any time-share interval owner is entitled to a release of such owner's time-share interval from the lien upon payment of the amount of the lien attributable to such owner's time-share interval. The amount of the payment must be proportionate to the ratio that the time-share interval owner's liability bears to the liabilities of all time-share interval owners whose interests are subject to the lien. Upon receipt of payment, the lienholder shall promptly deliver to the time-share interval owner a release of the lien covering that time-share interval. After payment, the managing entity may not assess or have a lien against that time-share interval for any portion of the expenses incurred in connection with that lien.
The developer shall not sell, lease, assign, or otherwise transfer the entire interest of the developer, other than as a transfer of a time-share interval in the normal course of marketing, in the time-share program or the accommodations or facilities to a third party when such a sale, lease, assignment, or other transfer substantially affects the rights of other owners of the time-share units, unless:
(1) The third party agrees in writing to honor fully the rights of purchasers of the time-share intervals to occupy and use the accommodations or facilities or agrees in writing to purchase the interval in an amount equal to the amount actually paid by the purchaser toward the purchase price of the time-share interval;
(2) The third party agrees in writing to honor fully the rights of purchasers of the time-share intervals to cancel their sales agreement and receive any refunds due;
(3) The third party agrees in writing to comply with the provisions of this article for as long as the third party continues to sell the time-share project or for as long as purchasers of the time-share project are entitled to occupy the accommodations or use the facilities, whichever is longer in time; and
(4) Written notice is given to the association and notice shall be sent by certified mail or statutory overnight delivery within 30 days of the sale, lease, assignment, or other transfer.
The person or entity responsible for making or collecting common expense assessments or maintenance assessments shall keep detailed financial records and shall keep said funds in a designated trust account. All financial and other records shall be made reasonably available for examination by any time-share interval owner in the program, by the time-share program's association, or by the authorized agent of such owner or association upon reasonable request.
(1) The developer of a time-share program shall maintain the following records for a period of three years. Said records shall be made available for inspection by any time-share interval owner in the program, by the time-share program's association, or by the authorized agent of such owner or association upon reasonable request:
(A) A copy of the escrow agreement for each time-share interval sold or, if alternative arrangements are made, a copy of the documents relating to those arrangements;
(B) Copies of lien releases, surety bonds, or other financial assurances executed by the developer to protect purchasers against any claims against the time-share program;
(C) Copies of management agreements entered into with managing agents for the management of the time-share program;
(D) Copies of agreements entered into with exchange programs for the inclusion of the time-share project in the exchange program's available facilities; and
(E) For multilocation developers, copies of certified public accountants' reports required by subparagraph (a)(3)(F) of Code Section 44-3-172.
(2) The managing agent of a time-share program shall maintain the following records for a period of three years. Said records shall be made available for inspection by any time-share interval owner in the program, by the time-share program's association, or by the authorized agent of such owner or association upon reasonable request:
(A) Copies of management agreements entered into with developers for the management of time-share programs; and
(B) Copies of budgets and statements sent to developers and time-share interval owners accounting for common expense and maintenance assessments.
(3) Exchange programs shall maintain the following records for a period of three years. Said records shall be made available for inspection by any time-share interval owner in the program, by the time-share program's association, or by the authorized agent of such owner or association upon reasonable request:
(A) Copies of agreements with developers for the inclusion of their projects in the exchange program's available facilities;
(B) Copies of agreements with time-share interval owners for their membership in the exchange program; and
(C) Copies of certified public accountants' reports as required by subparagraph (a)(2)(Q) of Code Section 44-3-172.
If a developer or any other person subject to this article violates any provision of this article or any provision of the project instruments, any person or class of persons adversely affected by the violation has a claim for appropriate relief. Punitive damages may be awarded for a willful violation of this article. The court may also award reasonable attorney's fees.
A judicial proceeding where the accuracy of the public offering statement or validity of any sales agreement is an issue and a rescission of the sales agreement is sought or damages are sought must be commenced within one year after the date upon which the last of the events described in paragraphs (1) through (3) of this Code section shall occur:
(1) The closing of the transaction;
(2) The first issuance by the applicable governmental authority of a certificate of occupancy or other evidence of sufficient completion of construction of the building containing the unit to allow lawful occupancy of the unit. In counties or municipalities in which certificates of occupancy or other evidence of completion sufficient to allow lawful occupancy are not customarily issued, for the purpose of this Code section, evidence of lawful occupancy shall be deemed to have been given or issued upon the date that such lawful occupancy of the unit may first be allowed under prevailing applicable laws, ordinances, or statutes; or
(3) The completion of the common elements and any recreational facilities, whether or not the same are common elements, which the seller is obligated to complete or to provide under the terms of the written contract for the sale of the unit.
(a) It shall be unlawful for any person, directly or indirectly, to sell or offer for sale time-share intervals in this state by authorizing, using, directing, or aiding in the dissemination, publication, distribution, or circulation of any statement, advertisement, radio broadcast, or telecast concerning the time-share project in which the time-share intervals are offered, which contains any statement or sketch which is false or misleading or contains any representation or pictorial representation of proposed improvements or nonexistent scenes without clearly indicating that the improvements are proposed and the scenes do not exist.
(b) Nothing in this Code section shall be construed to hold the publisher or employee of any newspaper, or any job printer, or any broadcaster or telecaster, or any magazine publisher, or any of the employees thereof, liable for any publication referred to in subsection (a) of this Code section unless the publisher, employee, or printer has actual knowledge of the falsity thereof or has an interest either as an owner or agent in the time-share project so advertised.
No advertising for the sale or offer for sale of time-share intervals shall:
(1) Contain any representation as to the availability of a resale program or rental program offered by or on behalf of the developer or its affiliate unless the resale program or rental program has been made a part of the offering;
(2) Contain an offer or inducement to purchase which purports to be limited as to quantity or restricted as to time unless the numerical quantity or time applicable to the offer or inducement is clearly and conspicuously disclosed;
(3) Contain statements concerning the availability of time-share intervals at a particular minimum price if the number of time-share intervals available at that price comprises less than 10 percent of the unsold inventory of the developer, unless the number of time-share intervals then for sale at the minimum price is set forth in the advertisement;
(4) Contain any statement that the time-share interval being offered for sale can be further divided unless a full disclosure is included as the legal requirements for further division of the time-share interval;
(5) Contain any asterisk or other reference symbol as a means of contradicting or changing the ordinary meaning of any previously made statement in the advertisement in such a manner as to mislead the public;
(6) Misrepresent the size, nature, extent, qualities, or characteristics of the accommodations or facilities which comprise the time-share project;
(7) Misrepresent the nature or extent of any services incident to the time-share project;
(8) Misrepresent or imply that a facility or service is available for the exclusive use of purchasers or owners if a public right of access or of use of the facility or service exists;
(9) Make any misleading or deceptive representation with respect to the registration of the time-share project, the sales agreement, the purchaser's rights, privileges, benefits, or obligations under the sales agreement or this article;
(10) Misrepresent the conditions under which a purchaser or owner may participate in an exchange program;
(11) Purport to have resulted through a referral unless the name of the person making the referral can be produced upon demand of any prospective purchaser or the time-share program's association;
(12) Describe any proposed or uncompleted private facilities over which the developer has no control or documented right of use unless the estimated date of completion is set forth and evidence can be produced upon the demand of any prospective purchaser or the time-share program's association that the completion and operation of the facilities are reasonably assured within the time represented in the advertisement or that no assurances of completion are provided;
(13) Contain any statement that the developer plans to affiliate with an exchange program;
(14) Represent that any federal, state, county, or municipal agency, board, or commission has recommended the time-share project or any of its documents; or
(15) Contain any statement guaranteeing or offering to guarantee the sale or resale of any time-share interval.
Any person who offers a gift, prize, award, or other item, or any other promotional contest or giveaway in connection with the sale or offer to sell of time-share intervals under this article must comply with all of the provisions of paragraph (16) of subsection (b) of Code Section 10-1-393, relating to promotional contests and giveaways in general.
In the developer's financing of a time-share program, the developer shall retain financial records of the schedule of payments required to be made and the payments made to any person or entity which is the holder of an underlying blanket mortgage, deed of trust, contract of sale, or other lien or encumbrance which is not subordinated to the time-share program and shall make the same available upon reasonable request to owners of time-share intervals in the time-share program and the time-share program's association. The time-share program's association, in its discretion, may require the developer to submit periodic, written reports from the mortgagee, lienholder, or other creditor of the status of payments made on any underlying blanket mortgage, deed of trust, contract of sale, or other lien or encumbrance which is not subordinated in the time-share program. Any transfer of the developer's interest in the time-share program to any third person shall be subject to the obligations of the developer.
The developer whose project is subject to an underlying blanket lien or encumbrance shall protect nondefaulting purchasers from foreclosure by the lienholder by obtaining from the lienholder a nondisturbance clause, subordination agreements, partial release of the lien as the time-share intervals are sold, or an agreement in writing that the lienholder will purchase nondefaulting purchasers' intervals in an amount equal to the amount agreed to by the parties but in no event less than the amount actually paid by the purchaser toward the purchase price of the time-share interval.
(a) It shall be unlawful for any person to engage in the business of, act in the capacity of, advertise, or assume to act as a sales agent or managing agent within this state without first obtaining a license to act as a real estate broker if required by Chapter 40 of Title 43.
(b) Prior to the closing of a resale of a time-share interval owned by a person other than the developer of the time-share program, no person may charge or collect any compensation for real estate brokerage services from the person reselling the time-share interval; provided, however, that such person providing real estate brokerage services may charge an advertising fee if:
(1) Such person can document that said advertising fee was paid to a firm which regularly provides advertising services to promote the sale of real property and with which such person providing real estate brokerage services has no personal, familial, or business relationship; and
(2) The party reselling the time-share interval signs an agreement authorizing the advertising fee and such agreement identifies the party to whom the advertising fee will be paid.
If the person offering real estate brokering services on the resale of a time-share interval also offers a guaranteed sale of the interval, such person may not charge or collect any compensation for any purpose prior to the closing of the resale of the time-share interval.
(a) Time-share projects located outside this state and offered for sale in this state must comply with such time-share regulations as exist in the situs state unless the provisions of this article are more restrictive, and then the provisions of this article shall be equally applicable. A time-share project located outside this state may supplement its disclosure materials in that situs state with an added disclosure addendum to be applicable to sales occurring in this state, which disclosure addendum incorporates the law of this state if more restrictive.
(b) Managing agents and exchange programs located outside this state and operating in this state must comply with all of the provisions of this article.
Compliance with this article shall not be required in the case of:
(1) Any transfer of a time-share interval by any time-share interval owner other than the developer or such developer's agent;
(2) Any disposition pursuant to court order;
(3) A disposition by a government or governmental agency;
(4) A disposition by foreclosure or deed in lieu of foreclosure;
(5) A disposition of a time-share interval in a time-share project situated wholly outside this state, provided that all solicitations and negotiations took place wholly outside this state and the sales agreement was executed wholly outside this state;
(6) A gratuitous transfer of a time-share interval; or
(7) Group reservations made for 15 or more people as a single transaction between a hotel and travel agent or travel groups for hotel accommodations when deposits are made and held for more than three years in advance.
(a) A developer must alter or supplement the form of or information contained in the public offering statement to assure that the public offering statement adequately and accurately discloses to prospective purchasers the material required to be disclosed by this article.
(b) The public offering statement shall not be used for any promotional purposes unless it is used in its entirety. No person shall advertise or represent that any federal, state, county, or municipal agency, board, or commission has approved or recommended the time-share program, its disclosure statement, or any of its documents.
Any developer or its agents shall keep among its business records and make reasonably available for examination to the purchaser or the time-share program's association or its authorized agent the following:
(1) A copy of each item required by this article;
(2) A copy of the sales agreement from each sale of a time-share interval in the time-share project, which sales agreement shall be retained for a period of at least three years after parties to the sale have completely performed all of their obligations thereunder; and
(3) A list of all employees or independent contractors, including their last known mailing address, which list shall include all current and previous employees or independent contractors whose employment or contract has been terminated within the preceding three years.
(a) Except that violations of Code Section 44-3-188 shall be subject only to the remedies available under paragraph (16) of subsection (b) of Code Section 10-1-393, any person who shall willfully and intentionally violate any provision of this article shall be guilty of a misdemeanor except in the case the violation causes loss in excess of $ 5,000.00, then said person shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine not to exceed $ 5,000.00 or by imprisonment for not less than one nor more than three years. Each violation of this article shall constitute a separate offense.
(b) Whenever it appears to the district attorney or the Attorney General, either upon complaint or otherwise, that any person has engaged in, is engaging in, or is about to engage in any act, practice, or transaction which is prohibited by this article, the district attorney or Attorney General or both may in his or her discretion apply to any court of competent jurisdiction in this state, including the Superior Court of Fulton County, for an injunction restraining such person and that person's agents, employees, partners, officers, and directors from continuing such act, practice, or transaction or doing any acts in furtherance thereof and for the appointment of a receiver or an auditor and such other and further relief as the facts may warrant.
(c) Any person who violates this article shall be liable in damages to any person or class of persons injured thereby. Punitive damages may be awarded for a willful violation of this article. The court may also award reasonable attorney's fees.
The provisions of this article shall apply to any time-share program located in this state or outside this state when offered for sale in this state created or commenced after July 1, 1983, and 180 days after July 1, 1983, as to any time-share program heretofore created or commenced.
(a) An owners' association may foreclose its lien upon a time-share estate in accordance with subsection (c) of Code Section 44-3-109 or with Code Section 44-3-207 or may foreclose its lien under a power of sale that such owners' association shall have under this Code section in order to sell a time-share estate for the purpose of paying any or all unpaid assessments and other charges owed by the owner of such time-share estate.
(b)(1) In order for an owners' association to foreclose its lien upon a time-share estate under a power of sale, a notice of sale shall be:
(A) Accomplished in writing sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address of the owner most recently provided to the owners' association no later than 30 days prior to the date of the proposed sale and shall be deemed given on the official postmark day or the day on which it is received for delivery by a commercial delivery firm;
(B) Provided in writing to any lien holder, sent by registered or certified mail or statutory overnight delivery, return receipt requested; and
(C) Provided by advertising the time, place, and terms of said sale in a newspaper in which sheriff's advertisements are published in the county where the development is located, once a week during the four calendar weeks immediately preceding the calendar week of the date of such sale.
(2) Any sale pursuant to this subsection shall occur on a legal sale day within the legal hours of sale at the legal place of sale in the county where the development is located.
(c) A sale undertaken as authorized by this Code section shall divest the owner of all right, title, interest, and equity that such owner has in or to the time-share estate and shall vest fee simple title to the time-share estate in the purchaser or purchasers at said sale. The proceeds of said sale shall be applied first in accordance with the lien priorities set forth in paragraphs (1) through (4) of subsection (a) of Code Section 44-3-109, after which any remaining proceeds shall be applied to the payment in full of such unpaid assessments and other charges and next to the payment of all expenses actually incurred by the owners' association in connection with said proceedings, including attorneys' fees, and any remaining proceeds shall be paid to the owner. The owners' association may bid at said sale and purchase the time-share estate.
(d) For the purpose of carrying out and effectuating the power of sale authorized by this Code section, the owners' association shall be constituted the true and lawful attorney-in-fact of such owner to sell such time-share estate, as provided in this Code section, and convey the same to the purchaser or purchasers at said sale in as full and ample a manner as such owner could do in person. The power and agency hereby granted are coupled with an interest and are irrevocable by death or otherwise.
(a)(1)(A) In order to sell a time-share estate for the purpose of paying any or all unpaid assessments and other charges owed by the owner of such time-share estate, an owners' association, or its managing agent on behalf of the owner's association, may foreclose its lien for all assessments and other charges assessed by the owners' association upon a time-share estate pursuant to the time-share instrument or subsections (a) and (b) of Code Section 44-3-109, in accordance with:
(i) The judicial foreclosure procedure of subsection (c) of Code Section 44-3-109 or 44-3-232, as applicable;
(ii) The trustee foreclosure procedure under this Code section; or
(iii) The nonjudicial foreclosure procedure under Code Section 44-3-206.
(B) If the time-share instrument contains any provision specifically prohibiting the use of the trustee foreclosure procedure, or if the owners' association otherwise determines that the time-share instrument should be amended to specifically provide for the use of the trustee foreclosure procedure, an amendment to the time-share instrument permitting the use of the trustee foreclosure procedure set forth in this Code section must be adopted and recorded prior to the use of the trustee foreclosure procedure. Prior to the owners' association's first use of the trustee foreclosure procedure, it shall notify all owners of time-share estates in the time-share program that, after the date of the notification, the owners' association has the right to elect to use the trustee foreclosure procedure with respect to any foreclosure of assessment liens as established in this Code section. The owners' association, or its managing agent on behalf of the owners' association, shall be deemed to have complied with this notice requirement if the owners of time-share estates in the time-share program are informed by mail sent to each owner's property address that was most recently provided to the owners' association, in the notice of an annual or special meeting of the owners, by posting on the website of the applicable time-share program, or by any other communication used by the owners' association.
(2) A mortgagee may foreclose its mortgage upon a time-share estate in accordance with Part 2 of Article 7 of Chapter 14 of this title or may foreclose its mortgage pursuant to the trustee foreclosure procedure under this Code section in order to sell a time-share estate for the purpose of satisfying any obligation of the owner of such time-share estate created by such mortgage; provided, however, that the mortgage, or an amendment to a mortgage executed by the owner of the time-share estate, permits the trustee foreclosure procedure.
(b)(1) For the purpose of carrying out and effectuating a trustee foreclosure authorized by this Code section, the owners' association or mortgagee, as applicable, shall appoint a trustee or substitute trustee by recording a notice of appointment of trustee or notice of substitution of trustee in the official records of the county in which the time-share estate is located. The owners' association or mortgagee may appoint multiple trustees in a single appointment, and any appointed trustee may be used by the owners' association, its managing agent, or the mortgagee, as applicable, regarding the trustee foreclosure of any assessment lien or mortgage under any time-share project for which the trustee is appointed. The recorded notice of appointment of trustee or notice of substitution of trustee shall contain the name and address of the trustee or substitute trustee, the name and address of the owners' association or mortgagee, and the name and address of the time-share project.
(2) For purposes of this Code section, an attorney who is a member in good standing of the State Bar of Georgia and who has been practicing law for at least five years, or that attorney's law firm, or a title insurer, underwriter, or agent authorized to transact business in this state is permitted to serve as a trustee or substitute trustee. A trustee shall use good faith, skill, care, and diligence in discharging all of the trustee duties under this Code section and shall deal honestly and fairly with all parties. A trustee who intentionally violates the provisions of this Code section concerning the trustee foreclosure procedure shall be guilty of a felony and shall be punished by a fine of not more than $5,000.00 or imprisonment for not less than one year nor more than three years, or both.
(c)(1) Before initiating the trustee foreclosure procedure against any time-share estate, a claim of lien or mortgage against the time-share estate shall have been recorded in the county in which the time-share estate is located.
(2) In any trustee foreclosure proceeding, the trustee shall first deliver to the owner of the time-share estate a written notice of default sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the owner's property address that was most recently provided to the owners' association or mortgagee and no later than 30 days prior to the initiation of the trustee foreclosure procedure. The notice of default shall be deemed delivered on the official postmark day or the day on which it is received for delivery by a commercial delivery firm. The notice of default shall state:
(A) The intent of the owners' association or mortgagee to commence foreclosing on the assessment lien or mortgage, after the end of the 30 day period, using the trustee foreclosure procedure set forth in this Code section;
(B) The address and telephone number of the trustee and owners' association, its managing agent, or the mortgagee, as applicable;
(C) The legal description of the time-share estate;
(D) The nature of the default;
(E) The outstanding amounts secured by the assessment lien or mortgage and a per diem amount to account for further accrual of such amounts;
(F) The method by which the owner of the time-share estate may cure the default; and
(G) The right of the owner of the time-share estate to object to the use of the trustee foreclosure procedure and require the owners' association or mortgagee to proceed thereafter only with a judicial foreclosure action as to that specified default by delivering a written objection to the trustee within 20 days after the delivery date of the notice.
(3) At any time before the trustee foreclosure sale of the encumbered time-share estate is consummated pursuant to subsection (e) of this Code section, the owner of the time-share estate may cure the default and redeem the time-share estate by paying the amounts secured by the assessment lien or mortgage in cash or certified funds to the trustee. No right of redemption shall exist after the consummation of the sale.
(d)(1) In order for a trustee to sell an encumbered time-share estate foreclosed under this Code section:
(A) The trustee must have provided the written notice of default as required under paragraph (2) of subsection (c) of this Code section, and a period of at least 30 calendar days must have elapsed after such notice of default is deemed delivered;
(B) The trustee must not have received from the owner of the time-share estate a written objection to the use of the trustee foreclosure procedure prior to the end of the 20 day period provided for in the notice of default and the time-share estate was not redeemed under paragraph (3) of subsection (c) of this Code section;
(C) The trustee must have delivered a notice of sale meeting the requirements of paragraph (4) of this subsection to the owner of the time-share estate, by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address of the owner of the time-share estate most recently provided to the owners' association or mortgagee no later than 30 days prior to the date of the proposed sale and the notice of sale shall be deemed delivered on the official postmark day or the day on which it is received for delivery by a commercial delivery firm;
(D) The trustee must have delivered a copy of the notice of sale to any junior lien holder of record by registered or certified mail or statutory overnight delivery, return receipt requested, no later than 30 days prior to the date of the proposed sale. The notice of sale shall be deemed delivered on the official postmark day or the day on which it is received for delivery by a commercial delivery firm;
(E) The trustee must have recorded a copy of the notice of sale in the official records of the county in which the time-share estate is located not less than 30 days prior to the date of the proposed sale; and
(F) The trustee must have published a notice in the legal organ for the county in which the time-share estate is located, or if there is no newspaper designated as such, then in the nearest newspaper having the largest general circulation in such county, once a week during the four calendar weeks immediately preceding the calendar week of the date of such sale. The last of such notices shall be published at least seven calendar days prior to the date of the sale.
(2) If a notice of lis pendens has not previously been recorded, the recording of the notice of sale shall have the same force and effect as the filing of a lis pendens in a judicial proceeding.
(3) Any trustee foreclosure sale pursuant to this subsection shall be conducted by the trustee, or by an agent of the trustee under the supervision of the trustee, and shall occur on a legal sale day within the legal hours of sale at the place of sale designated in the notice of sale, which must be accessible to the public in the county where the time-share estate is located. The trustee foreclosure sale may also occur online at a specific website on the internet or in any other manner used for a judicial foreclosure sale procedure in the county in which the time-share estate is located.
(4) The notice of sale required by paragraph (1) of this subsection shall be in writing and shall state:
(A) The name of the owner of the time-share estate;
(B) The legal description of the time-share estate;
(C) The name and address of the trustee;
(D) A description of the default that is the basis for the foreclosure;
(E) The recording information for the assessment lien or mortgage;
(F) The amounts secured by the assessment lien or mortgage and a per diem amount to account for further accrual of the amounts secured by the assessment lien or mortgage; and
(G) The date, location, and starting time of the trustee foreclosure sale, which shall be between the hours of 9:00 A.M. and 4:00 P.M., eastern standard time.
(e)(1) At the trustee foreclosure sale, the trustee shall issue to the highest bidder, who has paid the price bid in cash or certified funds, as purchaser or purchasers, a certificate of sale stating that a foreclosure conforming to the requirements of this Code section has occurred, including the time, location, and date of the sale; a legal description of the time-share estate that was sold; the amounts secured by the assessment lien or mortgage; the amount of the highest bid; and the name of the purchaser. Within three days of the trustee foreclosure sale, a copy of the certificate of sale shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the owner of the time-share estate at the owner's property address that was most recently provided to the owners' association or mortgagee. Upon the issuance of a certificate of sale, all of the rights of redemption of the owner of the time-share estate that have been foreclosed under this Code section shall terminate.
(2) Within ten calendar days after a sale, absent the prior filing and service on the trustee of a judicial action to enjoin issuance of the trustee foreclosure deed to the time-share estate, the trustee shall issue a trustee foreclosure deed to the purchaser and deliver the trustee foreclosure deed to the clerk of the superior court for recording in the official records of the county in which the time-share estate is located. The trustee foreclosure deed shall include the name and address of the trustee, the name and address of the purchaser or purchasers, the name and address of the former owner of the time-share estate, and a legal description of the time-share estate. The trustee foreclosure deed shall contain no warranties of title from the trustee. A certificate of compliance confirming that the notice and publication requirements of this Code section were met, that the default was not cured, that the trustee did not timely receive any written objection to the trustee foreclosure procedure from the owner of the time-share estate, and that the time-share estate was not timely redeemed shall be executed by the trustee and attached as an exhibit to the trustee foreclosure deed.
(3) A sale and delivery of the trustee foreclosure undertaken as authorized by this Code section shall divest the owner of the time-share estate of all right, title, interest, and equity that such owner has in or to the time-share estate and shall vest fee simple title to the time-share estate in the purchaser or purchasers at the trustee foreclosure sale. The issuance and recording of the trustee foreclosure deed is presumed valid and may be relied upon by third parties without actual knowledge of irregularities in the trustee foreclosure proceedings.
(4) The proceeds of the trustee foreclosure sale shall be applied first in accordance with the lien priorities set forth in paragraphs (1) through (4) of subsection (a) of Code Section 44-3-109, after which any remaining proceeds shall be applied to the payment in full of such unpaid assessments and other charges or mortgage obligations, as applicable, and next to the payment of all expenses actually incurred by the owners' association in connection with the trustee foreclosure proceedings, including attorneys' fees. Any remaining proceeds shall be paid to the prior owner of the time-share estate. The owners' association or mortgagee, as applicable, may bid at the sale and purchase the time-share estate and receive a credit up to the amount of unpaid assessments and other charges or mortgage obligations, as applicable, and all expenses actually incurred by the owners' association or mortgagee, as applicable, in connection with the trustee foreclosure proceedings, including attorney's fees.
(5) A trustee foreclosure sale releases the prior owner of the time-share estate of liability for any and all amounts secured by the assessment lien or mortgage, as applicable. The owners' association or mortgagee, as applicable, has no right to any deficiency judgment against the prior owner of the time-share estate after the completion of the trustee foreclosure sale of the time-share estate under this Code section.
This article shall be known and may be cited as the “Georgia Property Owners' Association Act.”
As used in this article, the term:
(1) “Board of directors” or “board” means an executive and administrative body, by whatever name denominated, designated in the instrument as the governing body of the association.
(2) “Common area” means all real and personal property submitted to the declaration which is owned or leased by the association for common use and enjoyment of the members.
(3) “Common expenses” means all expenditures lawfully made or incurred by or on behalf of the association together with all funds lawfully assessed for the creation and maintenance of reserves pursuant to the provisions of the instrument.
(4) “Court” means the superior court of the county where the development or any part thereof is located.
(5) “Declarant” means all owners and lessees of the property who execute the declaration or on whose behalf the declaration is executed; provided, however, that the phrase “owners and lessees,” as used in this article, shall not include in his or her capacity as such any mortgagee, any lien holder, any person having an equitable interest under any contract for the sale or lease of a lot, or any lessee or tenant of a lot. From the time of the recordation of any amendment to the declaration expanding an expandable property owners' development, all persons who execute that amendment or on whose behalf that amendment is executed shall also come within the definition of “declarant.” Any successors-in-title of any owner or lessee referred to in this paragraph who comes to stand in the same relation to the property owners' development as his or her predecessor did shall also come within such definition.
(6) “Declaration” means the recordable instrument creating covenants upon property which covenants are administered by a property owners' association in which membership is mandatory for all owners of lots in the property owners' development.
(7) “Foreclosure” means, without limitation, the judicial foreclosure of a mortgage and the exercise of a power of sale contained in any mortgage.
(8) “Limited common areas” means a portion of the common area reserved for the exclusive use of those entitled to occupy one or more, but less than all, of the lots.
(9) “Lot” means any plot or parcel of land, other than a common area, designated for separate ownership and occupancy shown on a recorded subdivision plat for a development and subject to a declaration. Where the context indicates or requires, the term lot includes any structure on the lot. With respect to a property owners' development which includes a condominium, and to the extent provided for in the instrument, each condominium unit, as defined in paragraph (28) of Code Section 44-3-71, shall be deemed a separate lot.
(10) “Lot owner” means one or more persons who are record title owners of a lot.
(11) “Mortgage” means a mortgage, deed to secure debt, deed of trust, or other instrument conveying a lien upon or security title to property.
(12) “Mortgagee” means the holder of a mortgage.
(13) “Officer” means an officer of the association.
(14) “Person” means a natural person, corporation, partnership, association, trust, other entity, or any combination thereof.
(15) “Property” means any real property and any interest in real property, including, without limitation, parcels of air space.
(16) “Property owners' association” or “association” means a corporation formed for the purpose of exercising the powers of the property owners' association created pursuant to this article.
(17) “Property owners' association instrument” or “instrument” means the declaration, plats, and plans recorded pursuant to this article. Any exhibit, schedule, or certification accompanying an instrument and recorded simultaneously therewith shall be deemed an integral part of that instrument. Any amendment or certification of any instrument shall, from the time of the recordation of such amendment or certification, be deemed an integral part of the affected instrument so long as such amendment or certification was made in accordance with this article.
(18) “Property owners' development” or “development” means real property which contains lots and which may contain common area located within Georgia and subject to a declaration and submitted to this article.
A property owners' development shall come into existence upon either the recordation of the declaration pursuant to this article or the amendment of a recorded declaration in accordance with Code Section 44-3-235. Any declaration or amendment intending to bring or avail a development of the benefits and provisions of this article shall state an affirmative election to be so governed. Any original declaration shall be duly executed by or on behalf of all of the owners of the submitted property. Any such amendment to an existing declaration shall be executed in accordance with the terms of the recorded declaration being amended thereby.
Every lot owner and all those entitled to occupy a lot shall comply with all lawful provisions of the property owners' association instrument. In addition, any lot owner and all those entitled to occupy a lot shall comply with any reasonable rules or regulations adopted by the association pursuant to the instrument which have been provided to the lot owners and with the lawful provisions of the bylaws of the association. Any lack of such compliance shall be grounds for an action to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, maintainable by the association or, in any proper case, by one or more aggrieved lot owners on their own behalf or as a class action. If and to the extent provided in the instrument, the association shall be empowered to impose and assess fines and suspend temporarily voting rights and the right of use of certain of the common areas and services paid for as a common expense in order to enforce such compliance; provided, however, that no such suspension shall deny any lot owner or occupants access to the lot owned or occupied.
(a) Since a lot owner may be more than one person, if only one of those persons is present at a meeting of the association, or is voting by proxy, ballot, or written consent, that person shall be entitled to cast the votes pertaining to that lot. However, if more than one of those persons is present, or executes a proxy, ballot, or written consent, the vote pertaining to that lot shall be cast only in accordance with their unanimous agreement unless the instrument expressly provides otherwise; and such consent shall be conclusively presumed if any one of them purports to cast the votes pertaining to that lot without protest being made immediately by any of the others to the person presiding over the meeting or vote.
(b) The votes pertaining to any lot may, and, in the case of any lot owner not a natural person or persons, shall, be cast pursuant to a proxy or proxies duly executed by or on behalf of the lot owner or, in cases where the lot owner is more than one person, by or on behalf of the joint owners of the lot. No such proxy shall be revocable except as provided in Code Section 14-2-722 or Code Section 14-3-724 or by written notice delivered to the association by the lot owner or by any joint owners of a lot. Any proxy shall be void if it is not dated or if it purports to be revocable without such notice.
(a) To the extent that the instrument expressly so provides:
(1) Any common expenses benefiting less than all of the lots shall be specially assessed equitably among all of the lots so benefited, as determined by the board;
(2) Any common expenses occasioned by the conduct of less than all of those entitled to occupy all of the lots or by the licensees or invitees of any such lot or lots shall be specially assessed against the lot or lots, the conduct of any occupant, licensee, or invitee of which occasioned any such common expenses;
(3) Any common expenses significantly disproportionately benefiting all of the lots shall be assessed equitably among all of the lots in the development as determined by the board; and
(4) Other than for limited common areas expressly designated as such in the instrument and assigned to fewer than all lots, nothing contained in paragraph (1) or (3) of this subsection shall permit an association to specially or disproportionately allocate common expenses for periodic maintenance, repair, and replacement of any portion of the common area or the lots which the association has the obligation to maintain, repair, or replace.
(b) No lot owner other than the association shall be exempted from any liability for any assessment under this Code section or under any instrument for any reason whatsoever, including, without limitation, abandonment, nonuse, or waiver of the use or enjoyment of his or her lot or any part of the common area except to the extent that any lot, upon request by the owner of the lot, expressly may be made exempt from assessments and thus denied voting rights of the lot under the instrument until a certificate of occupancy is issued by the governing authority for a dwelling on such lot.
(c) Unless otherwise provided in the instrument and except as provided in subsection (d) of this Code section, the grantee in a conveyance of a lot shall be jointly and severally liable with the grantor thereof for all unpaid assessments against the latter up to the time of the conveyance without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee; provided, however, that if the grantor or grantee shall request a statement from the association as provided in subsection (d) of Code Section 44-3-232, such grantee and his or her successors, successors-in-title, and assigns shall not be liable for nor shall the property owners' association lot conveyed be subject to a lien for any unpaid assessments against such grantor in excess of any amount set forth in the statement.
(d) In the event that the holder of a first priority mortgage or secondary purchase money mortgage of record, provided that neither the grantee nor any successor grantee on the secondary purchase money mortgage is the seller of the lot, or in the event that any other person acquires title to any lot as a result of foreclosure of any such mortgage, such holder or other person and his or her successors, successors-in-title, and assigns shall not be liable for nor shall the lot be subject to any lien for assessments under this Code section or under any instrument chargeable to the lot on account of any period prior to the acquisition of title; provided, however, that the unpaid share of an assessment or assessments shall be deemed to be a common expense collectable from all of the lot owners, including such holder or other person and his or her successors, successors-in-title, and assigns.
(a)(1) Except to the extent expressly permitted or required by other provisions of this article, the instrument shall be amended only by the agreement of lot owners of lots to which two-thirds of the votes in the association pertain or such larger majority as the instrument may specify; provided, however, that, during any such time as there shall exist an unexpired option to add any additional property to the property owners' association or during any such time as the declarant has the right to control the association under the instrument, the agreement shall be that of the declarant and the lot owners of lots to which two-thirds of the votes in the association pertain, exclusive of any vote or votes appurtenant to any lot or lots then owned by the declarant, or a larger majority as the instrument may specify.
(2) Notwithstanding any other provisions of this subsection:
(A) During such time as the declarant shall own at least one lot primarily for the purpose of sale of such lot, no amendment shall be made to the instrument without the written agreement of the declarant if such amendment would impose a greater restriction on the use or development by the declarant of the lot or lots owned by the declarant; and
(B) No amendment shall be made to the instrument so as to prohibit or restrict a nonowner occupied lot from continuing to be leased or rented for an initial term of six months or longer pursuant to the preamended instrument; provided, however, that upon the conveyance for value of such lot, such lot shall be made to conform to the instrument as amended. For purposes of this subparagraph, the term “conveyance for value” means any transfer of the lot for consideration in the amount of $100.00 or more or any transfer of an interest in the entity that owns the lot for consideration in the amount of $100.00 or more.
(b) No amendment of an instrument shall require approval of lot owners to which more than 80 percent of the association vote pertains and the mortgagees holding 80 percent of the voting interest of mortgaged lots; any property owners' association which exists prior to July 1, 1994, and amends its documents to avail itself of the provisions of this article shall be deemed to have amended the association instrument to conform to this limitation. This subsection shall not be deemed to eliminate or modify any right of the declarant provided for in the instrument to approve amendments to the instrument so long as the declarant owns any lot primarily for the purpose of sale and, furthermore, this Code section shall not be construed as modifying or altering the rights of a mortgagee set forth elsewhere in this article.
(c) Except to the extent expressly permitted or required by other provisions of this article, or agreed upon or permitted by the instrument concerning submission of additional property to this article by the declarant or the association, or agreed upon by all lot owners and the mortgagees of all lots, no amendment to the instrument shall change the boundaries of any lot, the number of votes in the association pertaining thereto, or the liability for common expenses pertaining thereto.
(d) Agreement of the required majority of lot owners to any amendment of the instrument shall be evidenced by their execution of the amendment. In the alternative, provided that the declarant does not then have the right to control the association pursuant to the instrument, the sworn statement of the president, of any vice president, or of the secretary of the association attached to or incorporated in an amendment executed by the association, which sworn statement states unequivocally that agreement of the required majority was otherwise lawfully obtained and that all notices required by this article were properly given, shall be sufficient to evidence the required agreement. Any such amendment of the instrument shall become effective only when recorded or at such later date as may be specified in the amendment itself.
(e) Notwithstanding anything to the contrary in this article or in the instrument, the approval of any proposed amendment by a mortgagee shall be deemed implied and consented to if the mortgagee fails to submit a response to any written proposal for an amendment within 30 days after the mortgagee receives notice of the proposed amendment sent by certified mail or statutory overnight delivery, return receipt requested.
(f) In any court suit or action where the validity of the adoption of an amendment to an instrument is at issue, the adoption of the amendment shall be presumed valid if the suit is commenced more than one year after the recording of the amendment on the public record. In such cases, the burden of proof shall be upon the party challenging the validity of the adoption of the amendment.
(a) Prior to submission to this article, the association shall be duly incorporated either as a business corporation under Chapter 2 of Title 14 or as a nonprofit membership corporation under Chapter 3 of Title 14, as amended. The corporate name of the association shall include the word or words “homeowners,” “property owners,” “community,” “club,” or “association” and shall otherwise comply with applicable laws regarding corporate names. The articles of incorporation of the association and the bylaws adopted by the association shall contain provisions not inconsistent with applicable law including but not limited to this article or with the declaration as may be required by this article or by the declaration and as may be deemed appropriate or desirable for the proper management and administration of the association. The term “member” shall include a shareholder in the event the association is a business corporation or issues stock. Membership shall continue during the period of ownership by such lot owner.
(b) Prior to the first conveyance of a property owners' association lot, the declarant shall cause the first board directors to be duly appointed, the officers to be elected, and the organization of the association to be effectuated.
(c) True and correct copies of the articles of incorporation and bylaws of the association and all amendments thereto shall be maintained at the principal and the registered offices of the association and at the sales office of the declarant so long as the declarant has the right to control the association pursuant to the instrument; and copies thereof shall be furnished to any lot owner on request upon payment of a reasonable charge therefor.
Unless the instrument or bylaws provide otherwise, a quorum shall be deemed present throughout any meeting of the members of the association if persons entitled to cast more than one-third of the votes are present at the beginning of the meeting. Unless the instrument or bylaws specify a larger percentage, the presence of persons entitled to cast one-half of the votes of the board of directors shall constitute a quorum for the transaction of business at any meeting of the board.
If the instrument provides that any member of the board of directors or any officer of the association must be a lot owner, then, notwithstanding Code Section 44-3-221, the term “lot owner” in such context shall, unless the instrument otherwise provides, be deemed to include, without limitation, any shareholder, director, officer, partner in, or trustee of any person who is, either alone or in conjunction with any other person or persons, a lot owner. Any individual who would not be eligible to serve as a member of the board of directors or officer were he or she not a shareholder, director, officer, partner in, or trustee of such a person shall be deemed to have disqualified himself or herself from continuing in office if he or she ceases to have any such affiliation with that person.
Meetings of the members of the association shall be held in accordance with the provisions of the association's bylaws and in any event shall be called not less frequently than annually. Notice shall be given to each lot owner at least 21 days in advance of any annual or regularly scheduled meeting and at least seven days in advance of any other meeting and shall state the time, place, and, for any special meeting, purpose of such meeting. Such notice shall be delivered personally or sent by United States mail, postage prepaid, statutory overnight delivery, or issued electronically in accordance with Chapter 12 of Title 10, the “Uniform Electronic Transactions Act,” to all lot owners of record at such address or addresses as designated by such lot owners or, if no other address has been so designated, at the address of their respective lots. At the annual meeting, comprehensive reports of the affairs, finances, and budget projections of the association shall be made to the lot owners.
(a) Except to the extent prohibited by the instrument and subject to any restrictions and limitations specified therein, the association shall have the power to:
(1) Employ, retain, dismiss, and replace agents and employees to exercise and discharge the powers and responsibilities of the association;
(2) Make or cause to be made additional improvements on and as a part of the common area; and
(3) Grant or withhold approval of any action by one or more lot owners or other persons entitled to occupancy of any lot if such action would change the exterior appearance of any lot, or any structure thereon, or of any other portion of the development or elect or provide for the appointment of an architectural control committee to grant or withhold such approval.
(b) Except to the extent prohibited by the instrument and subject to any restrictions and limitations specified therein, the association shall have the power to grant easements, leases, and licenses through or over the common area, to accept easements, leases, and licenses benefiting the development or any portion thereof, and to acquire or lease property in the name of the association. Property so acquired by the association upon the recordation of the deed thereto or other instrument granting the same and designating property as common area shall, for all purposes including without limitation taxation, be a part of the common area. The association shall also have the power to acquire, lease, and own in its own name property of any nature, real, personal, or mixed, tangible or intangible; to borrow money; and to pledge, mortgage, or hypothecate all or any portion of the property of the association for any lawful purpose within the association's inherent or expressly granted powers. Any third party dealing with the association shall be entitled to rely in good faith upon a certified resolution of the board of directors of the association authorizing any such act or transaction as conclusive evidence of the authority and power of the association so to act and of full compliance with all restraints, conditions, and limitations, if any, upon the exercise of such authority and power.
(c) The association shall have the power to amend the instrument, the articles of incorporation, and the bylaws of the association in such respects as may be required to conform to mandatory provisions of this article or of any other applicable law without a vote of the lot owners.
(d) In addition to any other duties and responsibilities as this article or the instrument may impose, the association shall keep:
(1) Detailed minutes of all meetings of the members of the association and of the board of directors;
(2) Detailed and accurate financial records, including itemized records of all receipts and expenditures; and
(3) Any books and records as may be required by law or be necessary to reflect accurately the affairs and activities of the association.
(e) This Code section shall not be construed to prohibit the grant or imposition of other powers and responsibilities to or upon the association by the instrument.
(f) Except to the extent otherwise expressly required by this article, by Chapter 2 or 3 of Title 14, by the instrument, by the articles of incorporation, or by the bylaws of the association, the powers inherent in or expressly granted to the association may be exercised by the board of directors, acting through the officers, without any further consent or action on the part of the lot owners.
(g) A tort action alleging or founded upon negligence or willful misconduct by any agent or employee of the association or in connection with the conditions of any portion of the instrument which the association has the responsibility to maintain shall be brought against the association. No lot owner shall be precluded from bringing such an action by virtue of his membership in the association. A judgment against the association arising from a tort action shall be a lien against the assets of the association.
(h) The association shall have the capacity, power, and standing to institute, intervene, prosecute, represent, or defend in its own name litigation or administrative or other proceedings of any kind concerning claims or other matters relating to any portion of the lots or common area which the association has the responsibility to administer, repair, or maintain.
(a) All sums lawfully assessed by the association against any lot owner or property owners' association lot, whether for the share of the common expenses pertaining to that lot, fines, or otherwise, and all reasonable charges made to any lot owner or lot for materials furnished or services rendered by the association at the owner's request to or on behalf of the lot owner or lot, shall, from the time the sums became due and payable, be the personal obligation of the lot owner and constitute a lien in favor of the association on the lot prior and superior to all other liens whatsoever except:
(1) Liens for ad valorem taxes on the lot;
(2) The lien of any first priority mortgage covering the lot and the lien of any mortgage recorded prior to the recording of the declaration; or
(3) The lien of any secondary purchase money mortgage covering the lot, provided that neither the grantee nor any successor grantee on the mortgage is the seller of the lot.
The recording of the declaration pursuant to this article shall constitute record notice of the existence of the lien, and no further recordation of any claim of lien for assessments shall be required.
(b) To the extent that the instrument provides, the personal obligation of the lot owner and the lien for assessments shall also include:
(1) A late or delinquency charge not in excess of the greater of $ 10.00 or 10 percent of the amount of each assessment or installment thereof not paid when due;
(2) At a rate not in excess of 10 percent per annum, interest on each assessment or installment thereof and any delinquency or late charge pertaining thereto from the date the same was first due and payable;
(3) The costs of collection, including court costs, the expenses required for the protection and preservation of the lot, and reasonable attorney's fees actually incurred; and
(4) The fair rental value of the lot from the time of the institution of an action until the sale of the lot at foreclosure or until judgment rendered in the action is otherwise satisfied.
(c) Not less than 30 days after notice is sent by certified mail or statutory overnight delivery, return receipt requested, to the lot owner both at the address of the lot and at any other address or addresses which the lot owner may have designated to the association in writing, the lien may be foreclosed by the association by an action, judgment, and court order for foreclosure in the same manner as other liens for the improvement of real property, subject to superior liens or encumbrances, but any such court order for judicial foreclosure shall not affect the rights of holders of superior liens or encumbrances to exercise any rights or powers afforded to them under their security instruments. The notice provided for in this subsection shall specify the amount of the assessments then due and payable together with authorized late charges and the rate of interest accruing thereon. No foreclosure action against a lien arising out of this subsection shall be permitted unless the amount of the lien is at least $2,000.00. Unless prohibited by the instrument, the association shall have the power to bid on the lot at any foreclosure sale and to acquire, hold, lease, encumber, and convey the same. The lien for assessments shall lapse and be of no further effect, as to assessments or installments thereof, together with late charges and interest applicable thereto, four years after the assessment or installment first became due and payable.
(d) Any lot owner, mortgagee of a lot, person having executed a contract for the purchase of a lot, or lender considering the loan of funds to be secured by a lot shall be entitled upon request to a statement from the association or its management agent setting forth the amount of assessments past due and unpaid together with late charges and interest applicable thereto against that lot. Such request shall be in writing, shall be delivered to the registered office of the association, and shall state an address to which the statement is to be directed. Failure on the part of the association, within five business days from the receipt of such request, to mail or otherwise furnish such statement regarding amounts due and payable at the expiration of such five-day period with respect to the lot involved to such address as may be specified in the written request therefor shall cause the lien for assessments created by this Code section to be extinguished and of no further force or effect as to the title or interest acquired by the purchaser or lender, if any, as the case may be, and their respective successors and assigns, in the transaction contemplated in connection with such request. The information specified in such statement shall be binding upon the association and upon every lot owner. Payment of a fee not exceeding $ 10.00 may be required as a prerequisite to the issuance of such a statement if the instrument so provides.
(e) Nothing in this Code section shall be construed to prohibit actions maintainable pursuant to Code Section 44-3-223 to recover sums for which subsection (a) of this Code section creates a lien.
(a) Notwithstanding and prior to the usual expiration of the period of the declarant's right to control the association pursuant to any property owners' association instruments, the association's articles of incorporation, or the association's bylaws, the right to control may pass to the property owners as provided in this Code section if the declarant fails to do any of the following:
(1) Incorporate or maintain an annual registration pursuant to subsection (a) of Code Section 44-3-227;
(2) Cause the board of directors to be duly appointed and the officers to be elected pursuant to subsection (b) of Code Section 44-3-227;
(3) Maintain and make available to owners, upon written request, a list of the names and business or home addresses of the association's current directors and officers;
(4) Call meetings of the members of the association in accordance with the provisions of the association's bylaws at least annually pursuant to Code Section 44-3-230;
(5) Prepare an annual operating budget, establish the annual assessment, and distribute such budget and notice of assessment to the owners in accordance with the condominium instruments no later than 30 days after the beginning of the association's fiscal year; or
(6) Pay property taxes on common property of the association for two or more years.
(b) In the event that the declarant fails to meet one or more of the obligations of this Code section, then any owner, acting individually or jointly with other owners, may send the declarant written notice of the failure to comply with such requirements and provide the declarant a 30 day opportunity to cure the failure; and such notice shall be sent by certified mail or statutory overnight delivery to the declarant's principal office. If the declarant fails to cure any or all deficiencies identified in the notice within 30 days of such notice, then any owner, acting individually or jointly with other owners, shall have standing individually, and not solely through a derivative action, to institute an action in the superior court of the county in which any portion of the property owner's association is located in order to obtain a declaratory judgment to grant the owner or owners control of the association by ordering an election and setting the terms thereof, or issuing any other orders appropriate to transfer control of the association. The superior court shall have authority to hold a hearing and issue a summary ruling on said action at any time designated by the court not earlier than 20 days after the service thereof, unless the parties consent in writing to an earlier trial. No discovery shall be had unless ordered by the court for good cause. In addition, the superior court shall be authorized to issue a summary ruling on the conveyance of any intended common areas or other property in the common interest community to the association or other appropriate entity. If the owner or owners prevail in such action, then the superior court shall award to the owner or owners all reasonable attorney's fees and costs incurred for the prosecution of such action. This Code section shall not be the basis for any liability against any party or agent of any party outside of the exclusive remedies provided herein.
The provisions of this article and of an instrument recorded pursuant thereto shall be liberally construed in favor of the valid establishment of property owners' association pursuant to this article with respect to the submitted property. Substantial compliance with the requirements of this article for the establishment of a property owners' association shall suffice to being property described in an instrument recorded pursuant to this article within the purview and application of this article; and any defects in such instrument or want of conformity with this article may be cured by an amendment thereto duly executed by the association and recorded or, upon application of any lot owner, with notice to the declarant, the association, and all other lot owners, by decree of the court.
The limitations provided in subsection (b) and paragraphs (1), (2), and (4) of subsection (d) of Code Section 44-5-60 shall not apply to any covenants contained in any instrument created pursuant to or submitted to this article.
(a) This article shall apply to all property which is submitted to this article. This article shall also apply to any association of owners subject to a recorded declaration of covenants upon property, which covenants are administered by an owners' association in which membership is mandatory for all owners of lots in the development, which declaration is amended in accordance with Code Section 44-3-222 in order to submit the property owners' association to this article; provided, however, that any amendment must conform the instrument creating the property owners' association to this article, and the property owners' development shall thereafter be deemed to be submitted to this article.
(b) This article shall not apply to associations created pursuant to Article 3 of this chapter, the “Georgia Condominium Act,” except to the extent that a property owners' development created under this article includes a condominium, together with other real property, as provided in paragraph (9) of Code Section 44-3-221.
(c) This article shall not be construed to affect the validity of any instrument recorded before or after July 1, 1994, but benefits derived from or based upon this article may only be claimed by developments submitted to this article.
Any developer that directly manages a homeowners' or condominium owners' association whose annual assessment fee is $500.00 or more in a development or subdivision with 20 or more homes shall provide a report itemizing the expenses for such homeowners' or condominium owners' association to each homeowner or condominium owner not later than 60 days after the end of the year for which fees were assessed. This Code section shall not apply to any development that has been made a property owners' development in accordance with Article 6 of this chapter, the “Georgia Property Owners' Association Act.”
(a) The Georgia portion of the State Plane Coordinate System as defined by the National Geodetic Survey, based on the National Spatial Reference System, for defining and stating the geographic positions or locations of points on the surface of the earth within this state shall be known and designated as the ‘Georgia State Plane Coordinate System.’
(b) For the purpose of the use of this system, the state is divided into an ‘East Zone’ and a ‘West Zone’:
(1) The area now included in the following counties shall constitute the East Zone: Appling, Atkinson, Bacon, Baldwin, Brantley, Bryan, Bulloch, Burke, Camden, Candler, Charlton, Chatham, Clinch, Coffee, Columbia, Dodge, Echols, Effingham, Elbert, Emanuel, Evans, Franklin, Glascock, Glynn, Greene, Hancock, Hart, Jeff Davis, Jefferson, Jenkins, Johnson, Laurens, Liberty, Lincoln, Long, McDuffie, McIntosh, Madison, Montgomery, Oglethorpe, Pierce, Richmond, Screven, Stephens, Taliaferro, Tattnall, Telfair, Toombs, Treutlen, Ware, Warren, Washington, Wayne, Wheeler, Wilkes, and Wilkinson; and
(2) The area now included in the following counties shall constitute the West Zone: Baker, Banks, Barrow, Bartow, Ben Hill, Berrien, Bibb, Bleckley, Brooks, Butts, Calhoun, Carroll, Catoosa, Chattahoochee, Chattooga, Cherokee, Clark, Clay, Clayton, Cobb, Colquitt, Cook, Coweta, Crawford, Crisp, Dade, Dawson, Decatur, DeKalb, Dooly, Dougherty, Douglas, Early, Fannin, Fayette, Floyd, Forsyth, Fulton, Gilmer, Gordon, Grady, Gwinnett, Habersham, Hall, Haralson, Harris, Heard, Henry, Houston, Irwin, Jackson, Jasper, Jones, Lamar, Lanier, Lee, Lowndes, Lumpkin, Macon, Marion, Meriwether, Miller, Mitchell, Monroe, Morgan, Murray, Muscogee, Newton, Oconee, Paulding, Peach, Pickens, Pike, Polk, Pulaski, Putnam, Quitman, Rabun, Randolph, Rockdale, Schley, Seminole, Spalding, Stewart, Sumter, Talbot, Taylor, Terrell, Thomas, Tift, Towns, Troup, Turner, Twiggs, Union, Upson, Walker, Walton, Webster, White, Whitfield, Wilcox, and Worth.
(a) As established for use in the East Zone, the Georgia State Plane Coordinate System shall be named; and, in any land description in which it is used, shall be designated as the “Georgia State Plane Coordinate System East Zone.”
(b) As established for use in the West Zone, the Georgia State Plane Coordinate System shall be named; and, in any land description in which it is used, shall be designated as the “Georgia State Plane Coordinate System West Zone.”
The plane coordinate values for a point on the earth's surface, used to express the geographic position or location of such point in the appropriate zone of the Georgia State Plane Coordinate System, shall consist of two distances expressed in either meters and decimals of a meter or, following conversion as provided in Code Section 44-4-27, in feet and decimals of a foot when using the Georgia State Plane Coordinate System. One of these distances, to be known as the East or x-coordinate shall give the distance east of the Y axis; the other, to be known as the North or y-coordinate shall give the distance north of the X axis. The Y axis of any zone shall be parallel with the central meridian of the zone. The X axis of any zone shall be perpendicular to the central meridian of that zone.
When any tract of land to be defined by a single description extends from one into the other of the coordinate zones established in Code Section 44-4-21, the positions of all points on its boundaries may be referred to either of the two zones, the zone which is used being specifically named in the description.
No coordinates based on either Georgia State Plane Coordinate System purporting to define the position of a point on a land boundary shall be presented to be recorded in any public land records or deed records unless such point has been connected by survey to a monumented horizontal control station that is identified and has been established in conformity with the standards of accuracy and specifications as shall be specified by rules and regulations established by the State Board of Registration for Professional Engineers and Land Surveyors.
The use of the term “Georgia State Plane Coordinate System East Zone,” “Georgia State Plane Coordinate System West Zone,” on any map, report of survey, or other document shall be limited to coordinates based on the Georgia State Plane Coordinate Systems as defined in this article.
The term “Grid North, Georgia East Zone” refers to the fixed north direction in the East Zone, being Geodetic North for the central meridian of that zone. The term “Grid North, Georgia West Zone” refers to the fixed north direction in the West Zone, being Geodetic North for the central meridian of that zone. The applicable Grid North term and the basis of orientation shall appear on maps of survey that are purported oriented to a Georgia State Plane Coordinate System zone.
Any conversion of distances between the meter and the foot shall be based upon the length of the meter (exactly) equals 3.280839895 feet.
Nothing contained in this article shall require any purchaser or mortgagee to rely on a description, any part of which depends exclusively upon the Georgia State Plane Coordinate System. Nothing in this article shall be so construed as to require any person, firm, or corporation to use this system of coordinates to obtain or secure a legal description of land or real estate.
(a) Any legal description prepared under the provisions of the Georgia Coordinate System provided by an Act approved March 6, 1945 (Ga. L. 1945, p. 218), and continued as a part of this Code until July 1, 1985, shall not be invalid based on the use of such coordinate system.
(b) Any continual use of legal descriptions prepared under the terms of the Georgia Coordinate System provided by an Act approved March 6, 1945 (Ga. L. 1945, p. 218), and continued as a part of this Code until July 1, 1985, which have been recorded or filed in official records within this state, shall not be invalid based on the use of such coordinate system.
(c) Any continual use of legal descriptions prepared under the terms of the Georgia Coordinate System provided by an Act approved on March 28, 1985 (Ga. L. 1985, p. 650), and continued as a part of this Code until July 1, 2022, which have been recorded or filed in the official records within this state, shall not be invalid based on the use of such coordinate system.
(a) The use of the term “Georgia State Plane Coordinate System” on any map, report of survey, legal description, or other document shall be limited to coordinates based on the Georgia State Plane Coordinate System as defined by this article.
(b) The provisions of this article shall not be construed to prohibit the appropriate use of other geodetic reference networks.
The title to all lands originates in grants from the Government and, since its independence, from the state.
All realty in this state is held under the state as the original owner thereof. It is free from all rent or service and is limited only by the right of eminent domain which remains in the state.
The form of grants heretofore used in this state is established, and a substantial compliance with such form shall be held sufficient.
The following errors in the issuing and recording of grants may be corrected:
(1) Any error in the name or residence of the grantee; or in the location, character, or boundary of the land; or in any other matter or thing connected with the application for or issuing of the grant;
(2) Any error in recording or transcribing the names of applicants for draws or the names of fortunate drawers in the several land lotteries, or any omission by any of the officers or on the part of any of the agents of the state, or any other mistake in recording the grant; or
(3) Any other error whereby the true grantee is deprived of or jeopardized in his right.
In all cases where errors in issuing or recording grants are sought to be corrected, an application shall be made in writing to the Governor showing that notice in writing of the nature and time of the application has been served upon every person who may be in any manner interested in the question. If no objection is filed and satisfactory evidence of the error or mistake is produced and submitted in writing, the Governor may pass an order requiring the error to be corrected and, if necessary, requiring a new grant to be issued upon delivery of the first grant for cancellation.
If objections are filed to the proceedings instituted pursuant to Code Section 44-5-5 and it appears that the proposed correction will interfere with the vested rights of other bona fide claimants, the Governor shall refuse to make such correction and shall leave the parties to their judicial remedies.
If it is unclear whether the proposed correction would interfere with the vested rights of others, the Governor may cause an issue to be made and certify the same to the superior court of the county where the land is located, requiring the court to cause the issue to be tried before a jury and have its verdict certified to him.
All the papers and evidence upon every application made pursuant to Code Section 44-5-5 shall be filed and preserved in the office of the Governor.
If the applicant for a corrected grant is not able to produce the original grant to be canceled, the Governor may issue the corrected grant after advertising for six months, at the expense of the applicant, for any objection to be filed.
(a) All corrected grants shall take effect from the time of the issuance of the original grant but shall not affect the vested rights of bona fide purchasers without notice.
(b) Corrected grants shall bear upon their face a notation of the correction made and the date of the executive order under which it was made.
Upon a writ of scire facias, grants issued by the state may be set aside by the superior court of the county where the land is located on the ground:
(1) That they were obtained by fraud or willful misrepresentations to the officers of the state by the grantee or those in privity with him;
(2) Of collusion between the grantee and the officers of the state; or
(3) Of fraud, accident, or mistake by the officers of the state, which fraud, accident, or mistake was known to the grantee.
Grants may be impeached before the courts where they are:
(1) Void upon their face;
(2) Issued without authority of law or against a prohibition in a law; or
(3) Issued for property to which the state had no title.
However, mere irregularities in the proceedings to obtain grants shall not be inquired into nor may a mistake in the name of the grantee be proved by parol.
A grantee of lands or a franchise takes nothing by implication but is confined to the terms of his grant; but every presumption is in favor of a grant.
When the land is subject to entry and grant, 20 years' possession of land under a claim of right shall authorize the courts to presume a grant.
Except for documents electronically filed as provided for in Chapter 12 of Title 10 and Part 1 of Article 1 of Chapter 2 of this title, a deed to lands shall be an original document, in writing, signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness. It shall be delivered to the purchaser or his or her representative and be made on a good or valuable consideration. The consideration of a deed may always be inquired into when the principles of justice require it.
A deed to personalty needs no attesting witness to make it valid; in other respects, the principles applicable to deeds to lands are applicable to deeds to personalty. However, generally a deed is not necessary to convey title to personalty.
Every bond for title, bond to reconvey realty, contract to sell or to convey realty or any interest therein and every transfer or assignment of any of such instruments shall, except as between the parties thereto, be executed with the same formality as is required for the execution of deeds conveying realty.
No prescribed form is essential to the validity of a deed to lands or personalty. If the deed is sufficient in itself to make known the transaction between the parties, no want of form will invalidate it.
If two clauses in a deed are utterly inconsistent, the former shall prevail; but the intention of the parties should, if possible, be ascertained from the whole instrument and carried into effect.
In a sale of lands, if the purchase is per acre, a deficiency in the number of acres may be apportioned in the price. If the sale is by the tract or the entire body, a deficiency in the quantity sold cannot be apportioned. If the sale is by a quantity of acres with the qualification “more or less” added, any deficiency is not apportionable unless the deficiency is so great as to constitute a willful deception or mistake amounting to fraud. In this event, the purchaser may demand a rescission of the sale or an apportionment of the purchase price.
If the purchaser loses part of his land from a defect of title, he may claim according to the relative value of the land so lost either a rescission of the purchase contract or a reduction of the price.
The principles of Code Sections 53-2-112 through 53-2-114 relating to elections shall also apply to deeds.
Recital in a deed that the purchase money has been received does not estop the maker from denying the fact and proving the contrary.
When a grantee accepts a deed, he is bound by the covenants contained therein even though the deed has not been signed by him.
Future interests or estates are descendible, devisable, and alienable in the same manner as estates in possession. Vested interests in property stemming from the approval of land disturbance, building, construction, or other development plans, permits, or entitlements in accordance with a schedule or time frame approved or adopted by the local government shall be descendible, devisable, and alienable in the same manner as estates in possession.
A deed, security deed, bill of sale to secure debt, or any other conveyance of property or interest in property to or by a minor is voidable unless such minor has become emancipated by operation of law or pursuant to Article 10 of Chapter 11 of Title 15. If a minor has conveyed property or an interest in property, the minor may void the conveyance upon arrival at the age of 18; and, if the minor makes another conveyance at that time, it will void the first conveyance without reentry or repossession. If property or an interest in property has been conveyed to a minor and, after arrival at the age of 18, the minor retains the possession or benefit of the property or interest in property, the minor shall have thereby ratified or affirmed the conveyance.
A deed delivered to a third party, to be delivered on certain conditions to the grantee, is an escrow. Possession of that deed by the grantee is presumptive proof of a delivery, but that presumption may be rebutted.
A deed to lands which is made while the lands are held adversely to the maker of the deed is not void.
The maker of a deed cannot subsequently claim adversely to his deed under a title acquired after the making thereof. He is estopped from denying his right to sell and convey the property treated in the deed.
If an original deed is lost, a copy may be established by the superior court of the county where the land is located; and when the copy is established, it shall have all the effect of the original.
Without an expressed stipulation to the contrary, a purchaser must pay the costs of the conveyance.
(a) All deeds conveying an interest in real property which has been used as a commercial landfill shall include notice of the landfill operations, the date the landfill operations commenced and terminated, if known, a legal description of the actual location of the landfill, and a description of the type of materials which have been deposited in the landfill. As used in this Code section, “commercial landfill” means an area where materials have been deposited for a fee.
(b) This Code section applies only to those parties who have knowledge of the landfill operations when conveying real property.
(c) Any seller of real property who willfully violates the provisions of this Code section shall be liable to the purchaser for treble damages for any losses sustained by the purchaser as a result of the sale.
Except as provided in Code Section 44-5-60 and excluding covenants recorded on property solely by the property's owner, which shall run with the title to the land, a covenant runs with the land when, for consideration and as reflected in a duly recorded instrument found in the applicable chain of title, a property owner and a third party agree to such covenant, the property is adequately described in such covenant, and such covenant does not run for more than 20 years.
(a) The purchaser of lands obtains with the title, whether conveyed to him at public or private sale, all the rights which any former owner of the land under whom he claims may have had by virtue of any covenants of warranty of title, of quiet enjoyment, or of freedom from encumbrances contained in the conveyance from any former grantor unless the transmission of such covenants with the land is expressly prohibited in the covenant itself.
(b) Notwithstanding subsection (a) of this Code section, covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws nor in those areas in counties for which zoning laws have been adopted; provided, however, that whenever a zoning ordinance, upon its initial enactment by a county or municipality, expressly acknowledges the continuing application of a covenant restricting lands to certain uses within that jurisdiction, any such covenant, if created prior to zoning laws being adopted by that county or municipality, shall continue to be effective in such jurisdiction until the expiration of such covenant in accordance with its terms.
(c) The limitation provided in subsection (b) of this Code section shall not apply with respect to any covenant or scenic easement in favor of or for the benefit of the United States or any department, bureau, or agency thereof; this state or any political subdivision thereof; or any corporation, trust, or other organization holding land for the use of the public, but only with respect to such covenants and scenic easements running in favor of or for the benefit of the land so held for the use of the public. Such covenants and scenic easements shall run in perpetuity.
(d)(1) Notwithstanding the limitation provided in subsection (b) of this Code section, covenants restricting lands to certain uses affecting planned subdivisions containing no fewer than 15 individual plots shall automatically be renewed beyond the period provided for in subsection (b) of this Code section unless terminated as provided in this subsection. Each such renewal shall be for an additional 20 year period, and there shall be no limit on the number of times such covenants shall be renewed.
(2) To terminate a covenant as provided in paragraph (1) of this subsection, at least 51 percent of the persons owning plots affected by such covenant shall execute a document containing a legal description of the entire area affected by the covenant, a list of the names of all record owners of plots affected by the covenant, and a description of the covenant to be terminated, which may be incorporated by reference to another recorded document. By signing such document, each such person shall verify that he or she is a record owner of property affected by the covenant. Such document shall be recorded in the office of the clerk of the superior court of the county where the land is located no sooner than but within two years prior to the expiration of the initial 20 year period or any subsequent 20 year period. The clerk of the superior court shall index the document under the name of each record owner appearing in the document.
(3) No covenant that prohibits the use or ownership of property within the subdivision may discriminate based on race, creed, color, age, sex, or national origin.
(4) Notwithstanding any other provision of this Code section or of any covenants with respect to the land, no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made.
(5)(A) Notwithstanding and prior to the usual expiration of the period of covenants restricting land to certain uses affecting planned subdivisions containing no fewer than 15 individual plots as provided for by this subsection, the right to control any entity formed for the purpose of enforcing such covenants may pass to the subdivision plot owners as provided in this paragraph if such entity fails to do any of the following:
(i) Incorporate or maintain an annual registration pursuant to the terms of the covenants;
(ii) Cause the board of directors to be duly appointed and the officers to be elected pursuant to the terms of the covenants;
(iii) Maintain and make available to owners, upon written request, a list of the names and business or home addresses of the entity's current directors and officers;
(iv) Call meetings of the members of the entity in accordance with the provisions of the covenants;
(v) Prepare an annual operating budget, establish the annual assessment, and distribute such budget and notice of assessment to plot owners in accordance with the provisions of the covenants no later than 30 days after the beginning of the entity's fiscal year; or
(vi) Pay property taxes on common property in the planned subdivision for two or more years.
(B) In the event that an entity formed for the purpose of enforcing covenants restricting land to certain uses fails to meet one or more of the obligations of this paragraph, then any plot owner, acting individually or jointly with other plot owners, may send such entity written notice of the failure to comply with such requirements and provide the entity a 30 day opportunity to cure the failure; and such notice shall be sent by certified mail or statutory overnight delivery to the entity's principal office. If the entity fails to cure any or all deficiencies identified in the notice within 30 days of such notice, then any plot owner, acting individually or jointly with other plot owners, shall have standing individually, and not solely through a derivative action, to institute an action in the superior court of the county in which any portion of the entity is located in order to obtain declaratory judgment to grant the plot owner or owners control of the entity by ordering an election and setting the terms thereof, or issuing any other orders appropriate to transfer control of the entity. The superior court shall have authority to hold a hearing and issue a summary ruling on said action at any time designated by the court not earlier than 20 days after the service thereof, unless the parties consent in writing to an earlier trial. No discovery shall be had unless ordered by the court for good cause. In addition, the superior court shall be authorized to issue a summary ruling on the conveyance of any intended common areas or other property in the common interest community to the association or other appropriate entity. If the plot owner or owners prevail in such action, then the superior court shall award to the plot owner or owners all reasonable attorney's fees and costs incurred for the prosecution of such action. This paragraph shall not be the basis for any liability against any party or agent of any party outside of the exclusive remedies provided herein.
(e) To the extent provided in the covenants, the obligation for the payment of assessments and fees arising from covenants shall include the costs of collection, including reasonable attorney's fees actually incurred.
In a sale of land there is no implied warranty of title.
A general warranty of title against the claims of all persons includes covenants of a right to sell, of quiet enjoyment, and of freedom from encumbrances.
In a deed, a general warranty of title against the claims of all persons covers defects in the title even if they are known to the purchaser at the time he takes the deed.
In actions for breach of warranty of title, the burden of proof is on the plaintiff except in cases where outstanding encumbrances have been paid off or possession has been yielded as a consequence of legal proceedings of which the warrantor had notice and an opportunity to defend.
To recover upon a breach of a covenant of warranty of title, the warrantee need not offer to rescind the deed. However, an offer by the warrantor to rescind the deed and a refusal by the warrantee should be considered in estimating damages.
Upon a breach of a covenant of warranty of title to land, the damages awarded should be the purchase money with interest thereon from the time of sale unless the jury determines, under the circumstances of the case, that the use of the premises was equal to the interest on the money and determines that an equitable setoff should be allowed. However, if valuable improvements have been made on the premises, the interest should be allowed.
Upon the breach of a bond for title to land, the value of the premises at the time of the breach with interest thereon should be the measure of damages. However, if the vendee has bought up the outstanding title, only the actual damage sustained by him may be recovered.
To constitute a valid inter vivos gift, the following criteria must be met:
(1) The donor must intend to give the gift;
(2) The donee must accept the gift; and
(3) The gift must be delivered or some act which under law is accepted as a substitute for delivery must be done.
If a gift is of substantial benefit, the law will presume its acceptance unless the contrary is shown. A parent, guardian, or friend may accept a gift for a minor. The officers of a corporation may accept a gift for the corporation.
Actual manual delivery is not essential to the validity of a gift. Any act which indicates a renunciation of dominion by the donor and the transfer of dominion to the donee shall constitute a constructive delivery.
A gift in writing, without good consideration and without delivery, is void. However, when, in order for a gift to be valid, a written conveyance for good consideration is required by law, or when in any case a written conveyance is made for a good consideration, the execution and delivery of such conveyance shall dispense with the necessity of delivering the article given.
The delivery of personal property by a parent into the exclusive possession of a child living separate from the parent creates a presumption of a gift to the child. This presumption may be rebutted by evidence of an actual contract of lending or by circumstances from which such a contract may be inferred.
The exclusive possession by a child of lands which originally belonged to the parent or parents, without payment of rent, for the space of seven years, creates a rebuttable presumption of a gift and conveys title to the child. The presumption may be rebutted by evidence of a loan, of a claim of dominion by the parent or parents acknowledged by the child, of a disclaimer of title by the child, or similar evidence.
A gift by a person who is just over the age of majority or who is particularly susceptible to be unduly influenced by his parent, guardian, trustee, attorney, or other person standing in a similar confidential relationship to one of such persons shall be closely scrutinized. Upon the slightest evidence of persuasion or influence, such gift shall be declared void at the instance of the donor or his legal representative and at any time within five years after the making of such gift.
If a gift is made for a specific purpose which is either expressed or is secretly understood and the purpose is illegal or from some other cause fails or cannot be accomplished, the donee shall hold the object of the gift as trustee for the donor or his next of kin.
(a) An insolvent person may not make a valid gift to the injury of his existing creditors.
(b) When partial or complete possession of property remains with the donor, every parol gift thereof shall be void against bona fide creditors and bona fide purchasers without notice.
Any person who is a resident of this state and who is 17 years of age or over may donate his blood to any person, firm, association, organization, public or private agency, or corporation without the consent of his parent or parents or guardian. Any person who is not a resident of this state and who is 17 years of age or over may donate his blood to any person, firm, association, organization, public or private agency, or corporation in this state without the consent of his parent or parents or guardian when the laws of the state wherein such person resides permit the donation of blood at such age.
(a) To constitute a valid gift in contemplation of death, the following criteria must be met:
(1) The object of the gift must be personal property;
(2) The donor must be in his last illness or in peril of death;
(3) The gift must be intended to be absolute only in the event of death;
(4) The gift must be perfected by either actual or symbolic delivery; and
(5) The gift must be proved by one or more witnesses.
(b) A gift in contemplation of death may be made by parol.
This article shall be known and may be cited as “The Georgia Transfers to Minors Act.”
As used in this article, the term:
(1) “Adult” means an individual who has attained the age of 21 years.
(2) “Benefit plan” means an employer's plan for the benefit of an employee or partner or an individual retirement account.
(3) “Broker” means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person's own account or for the account of others.
(4) “Court” means the probate court in the county where the minor resides, or, if the minor is not a resident of this state, the probate court in the county where the custodian resides or has his principal place of business or where the custodial property is located.
(5) “Custodial property” means any interest in property transferred to a custodian under the authority of this article and the income from and proceeds of that interest in property.
(6) “Custodian” means a person so designated under Code Section 44-5-119 or a successor or substitute custodian designated under Code Section 44-5-128.
(7) “Financial institution” means a bank, trust company, national banking association, industrial bank, savings institution, or credit union chartered and supervised under state or federal law.
(8) “Guardian” means a person appointed or qualified by a court to act as general, limited, or temporary guardian of a minor's property or a person legally authorized to perform substantially the same functions.
(9) “Legal representative” means an individual's personal representative or guardian.
(10) “Member of the minor's family” means the minor's parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption.
(11) “Minor” means an individual who has not attained the age of 21 years.
(12) “Person” means an individual, corporation, organization, or other legal entity.
(13) “Personal representative” means an executor, administrator, successor personal representative, or special administrator of a decedent's estate or a person legally authorized to perform substantially the same functions.
(14) “State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
(15) “Transfer” means a transaction that creates custodial property under Code Section 44-5-119.
(16) “Transferor” means a person who makes a transfer under the authority of this article.
(17) “Trust company” means a financial institution, corporation, or other legal entity authorized to exercise general trust powers in this state.
(a) This article applies to a transfer that refers to “The Georgia Transfers to Minors Act” in the designation under subsection (a) of Code Section 44-5-119 by which the transfer is made if at the time of the transfer the transferor, the minor, or the custodian is a resident of this state or the custodial property is located in this state. The custodianship so created remains subject to this article despite a subsequent change in residence of a transferor, the minor, or the custodian or the removal of custodial property from this state.
(b) A person designated as custodian under the authority of this article is subject to personal jurisdiction in this state with respect to any matter relating to the custodianship.
(c) A transfer that purports to be made and which is valid under the Uniform Transfers to Minors Act, the Uniform Gifts to Minors Act, or a substantially similar act of another state is governed by the law of the designated state and may be executed and is enforceable in this state if, at the time of the transfer, the transferor, the minor, or the custodian is a resident of the designated state or the custodial property is located in the designated state.
(a) A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor recipient upon the occurrence of the event by naming the custodian, followed in substance by the words: “as custodian for _____ (name of minor) under ‘The Georgia Transfers to Minors Act.’ ” The nomination may name one or more persons as substitute custodians to whom the property must be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines, or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment, or in a writing designating a beneficiary of contractual rights which is delivered to the payor, issuer, or other obligor of the contractual rights.
(b) A custodian nominated under this Code section must be a person to whom a transfer of property of that kind may be made under subsection (a) of Code Section 44-5-119.
(c) The nomination of a custodian under this Code section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under Code Section 44-5-119. Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property pursuant to Code Section 44-5-119.
A person may make a transfer by irrevocable gift to, or by the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor pursuant to Code Section 44-5-119.
(a) A personal representative or trustee may make an irrevocable transfer pursuant to Code Section 44-5-119 to a custodian for the benefit of a minor as authorized in the governing will or trust.
(b) If the testator or settlor has nominated a custodian under Code Section 44-5-113 to receive the custodial property, the transfer must be made to that person.
(c) If the testator or settlor has not nominated a custodian under Code Section 44-5-113, or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under subsection (a) of Code Section 44-5-119, which designation may include the personal representative or the trustee.
(a) Subject to subsection (c) of this Code section, a personal representative or trustee may make an irrevocable transfer to an adult or trust company as custodian (which custodian may be the personal representative or the trustee) for the benefit of a minor pursuant to Code Section 44-5-119, in the absence of a will or under a will or trust that does not contain an authorization to do so.
(b) Subject to subsection (c) of this Code section, a guardian may make an irrevocable transfer to an adult or trust company as custodian (which custodian may be the guardian) for the benefit of the minor pursuant to Code Section 44-5-119.
(c) A transfer under subsection (a) or (b) of this Code section may be made only if:
(1) The personal representative, trustee, or guardian considers the transfer to be in the best interest of the minor;
(2) The transfer is not prohibited by or inconsistent with provisions of the applicable will, trust agreement, or other governing instrument; and
(3) The transfer is authorized by the court as in the best interest of the minor if such transfer, combined with all prior transfers to the minor under this Code section, in the aggregate exceeds $10,000.00 in value.
(a) Subject to subsections (b) and (c) of this Code section, a person not subject to Code Section 44-5-115 or 44-5-116 who holds property of or owes a liquidated debt to a minor may make an irrevocable transfer to a custodian for the benefit of the minor pursuant to Code Section 44-5-119.
(b) If a person having the right to do so under Code Section 44-5-113 has nominated a custodian under that Code section to receive the custodial property, the transfer must be made to the custodian so designated.
(c) If no custodian has been nominated under Code Section 44-5-113, or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, a transfer under this Code section may be made to an adult member of the minor's family or to a trust company as custodian for the benefit of the minor if a guardian appointed for such minor considers the transfer to be in the best interest of the minor and, on petition brought by the minor's guardian, the transfer is authorized by the court as in the best interest of the minor.
A written acknowledgment of delivery by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian pursuant to this article.
(a) Custodial property is created and a transfer is made whenever:
(1) An uncertificated security or a certificated security in registered form is either:
(A) Registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for _____ (name of minor) under ‘The Georgia Transfers to Minors Act’ ”; or
(B) Delivered if in certificated form, or any document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set forth in subsection (b) of this Code section;
(2) Money is paid or delivered to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for _____ (name of minor) under ‘The Georgia Transfers to Minors Act’ ”;
(3) The ownership of a life or endowment insurance policy or annuity contract is either:
(A) Registered with the issuer in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for _____ (name of minor) under ‘The Georgia Transfers to Minors Act’ ”; or
(B) Assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words: “as custodian for _____ (name of minor) under ‘The Georgia Transfers to Minors Act’ ”;
(4) An irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer, or other obligor that the right is transferred to the transferor, an adult other than the transferor, or a trust company, whose name in the notification is followed in substance by the words: “as custodian for _____ (name of minor) under ‘The Georgia Transfers to Minors Act’ ”;
(5) An interest in real property is recorded in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for _____ (name of minor) under ‘The Georgia Transfers to Minors Act’ ”;
(6) A certificate of title issued by a department or agency of a state or of the United States which evidences title to tangible personal property is either:
(A) Issued in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for _____ (name of minor) under ‘The Georgia Transfers to Minors Act’ ”; or
(B) Delivered to an adult other than the transferor or to a trust company, endorsed to that person, followed in substance by the words: “as custodian for _____ (name of minor) under ‘The Georgia Transfers to Minors Act’ ”;
(7) An interest in any property not described in paragraphs (1) through (6) of this subsection is transferred to an adult other than the transferor or to a trust company by a written instrument in substantially the form set forth in subsection (b) of this Code section.
(b) An instrument in the following form satisfies the requirements of subparagraph (B) of paragraph (1) and paragraph (7) of subsection (a) of this Code section:
--“Transfer under the Georgia Transfers to Minors Act--
I, _____ (name of transferor or name and representative capacity if a fiduciary) transfer to _____ (name of custodian), as custodian for _____ (name of minor) under 'The Georgia Transfers to Minors Act,' the following: (insert a description of the custodial property sufficient to identify it).
| Dated: | __________________________________ | | | --- | --- | --- | | | __________________________________ | | | | (Signature) | |
_____ (name of custodian) acknowledges receipt of the property described above as custodian for the minor named above under 'The Georgia Transfers to Minors Act.'
| Dated: | __________________________________ | | | --- | --- | --- | | | __________________________________ | | | | (Signature of Custodian)” | |
(c) A transferor shall place the custodian in control of the custodial property as soon as practicable.
A transfer may be made only for one minor, and only one person may be custodian. All custodial property held under the authority of this article by the same custodian for the benefit of the same minor constitutes a single custodianship.
(a) The validity of a transfer made in a manner prescribed in this article is not affected by:
(1) Failure of the transferor to comply with subsection (c) of Code Section 44-5-119 concerning possession and control;
(2) Designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under subsection (a) of Code Section 44-5-119; or
(3) Death or incapacity of a person nominated under Code Section 44-5-113 or designated under Code Section 44-5-119 as custodian or the disclaimer of the office by that person.
(b) A transfer made pursuant to Code Section 44-5-119 is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties, and authority provided in this article, and neither that minor nor the minor's legal representative has any right, power, duty, or authority with respect to the custodial property except as provided in this article.
(c) By making a transfer, the transferor incorporates in the disposition all the provisions of this article and grants to the custodian, and to any third person dealing with a person designated as custodian, the respective powers, rights, and immunities provided in this article.
(a) A custodian shall:
(1) Take control of custodial property;
(2) Register or record title to custodial property if appropriate; and
(3) Collect, hold, manage, invest, and reinvest custodial property.
(b) In dealing with custodial property, a custodian shall invest and reinvest the custodial property as would prudent men of discretion and intelligence who are seeking a reasonable income and the preservation of their capital, without reference to the laws relating to permissible investments by fiduciaries. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. However, a custodian, in the custodian's discretion and without liability to the minor or the minor's estate, may retain any custodial property received from a transferor without reference to the laws relating to permissible investments by fiduciaries.
(c) A custodian may invest in or pay premiums on life insurance or endowment policies on:
(1) The life of the minor only if the minor or the minor's estate is the sole beneficiary; or
(2) The life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor's estate, or the custodian in the capacity of custodian is the irrevocable beneficiary.
(d) A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor's interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: “as a custodian for _____ (name of minor) under ‘The Georgia Transfers to Minors Act.’ ”
(e) A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor's tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of 14 years.
(a) A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that adult owners have over their own property, but a custodian may exercise those rights, powers, and authority in that capacity only.
(b) This Code section does not relieve a custodian from liability for breach of Code Section 44-5-122.
(a) A custodian may deliver or pay to the minor or expend for or apply to the minor's benefit so much or the whole of the custodial property as the custodian considers advisable for the support, maintenance, education, and general use and benefit of the minor in such manner, at such time or times, and to such extent as the custodian may deem suitable and proper, without court order and without regard to:
(1) The duty or ability of the custodian personally or of any other person to support the minor; or
(2) Any other income or property of the minor which may be applicable or available for that purpose.
(b) On petition of an interested person or the minor if the minor has attained the age of 14 years, the court may order the custodian to deliver or pay to the minor or expend for the minor's benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor.
(c) A delivery, payment, or expenditure under this Code section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor.
(a) A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian's duties.
(b) Except for one who is a transferor under Code Section 44-5-114, a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year.
(c) Except as provided in subsection (f) of Code Section 44-5-128, a custodian need not give a bond.
A third person in good faith and without court order may act on the instructions of or otherwise deal with any person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, is not responsible for determining:
(1) The validity of the purported custodian's designation;
(2) The propriety of, or the authority under this article for, any act of the purported custodian;
(3) The validity or propriety under this article of any instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or
(4) The propriety of the application of any property of the minor delivered to the purported custodian.
(a) A claim based on:
(1) A contract entered into by a custodian acting in a custodial capacity;
(2) An obligation arising from the ownership or control of custodial property; or
(3) A tort committed during the custodianship
may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable therefor.
(b) A custodian is not personally liable:
(1) On a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity and to identify the custodianship in the contract; or
(2) For an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodian is personally at fault.
(c) A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless the minor is personally at fault.
(a) A person nominated under Code Section 44-5-113 or designated under Code Section 44-5-119 as custodian may decline to serve by delivering a valid disclaimer under Code Section 53-2-115 to the person who made the nomination or to the transferor or the transferor's legal representative. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing, and eligible to serve was nominated under Code Section 44-5-113, the person who made the nomination may nominate a substitute custodian under Code Section 44-5-113; otherwise, the transferor or the transferor's legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under subsection (a) of Code Section 44-5-119. The custodian so designated has the rights of a successor custodian.
(b) A custodian at any time may designate a trust company or an adult other than a transferor under Code Section 44-5-114 as successor custodian by executing and dating an instrument of designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated, or is removed.
(c) A custodian may resign at any time by delivering written notice to the minor if the minor has attained the age of 14 years and to the successor custodian and by delivering the custodial property to the successor custodian.
(d) If a custodian is ineligible, dies, or becomes incapacitated without having effectively designated a successor and the minor has attained the age of 14 years, the minor may designate as successor custodian, in the manner prescribed in subsection (b) of this Code section, an adult member of the minor's family, a guardian of the minor, or a trust company. If the minor has not attained the age of 14 years or fails to act within 60 days after the ineligibility, death, or incapacity, the guardian of the minor becomes successor custodian. If the minor has no guardian or the guardian declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor's family, or any other interested person may petition the court to designate a successor custodian.
(e) A custodian who declines to serve under subsection (a) of this Code section or resigns under subsection (c) of this Code section, or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received.
(f) A transferor, the legal representative of a transferor, an adult member of the minor's family, a guardian of the person of the minor, the guardian of the minor, or the minor if the minor has attained the age of 14 years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under Code Section 44-5-114 or to require the custodian to give appropriate bond.
(a) A minor who has attained the age of 14 years, the minor's guardian of the person or legal representative, an adult member of the minor's family, a transferor, or a transferor's legal representative may petition the court:
(1) For an accounting by the custodian or the custodian's legal representative; or
(2) For a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under Code Section 44-5-127 to which the minor or the minor's legal representative was a party.
(b) A successor custodian may petition the court for an accounting by the predecessor custodian.
(c) The court, in a proceeding under this article or in any other proceeding, may require or permit the custodian or the custodian's legal representative to account.
(d) If a custodian is removed under subsection (f) of Code Section 44-5-128, the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property.
The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor's estate upon the earliest of:
(1) The minor's attainment of 21 years of age with respect to custodial property transferred under Code Section 44-5-114 or 44-5-115;
(2) The minor's attainment of majority under the laws of this state other than this article with respect to custodial property transferred under Code Section 44-5-116 or 44-5-117; or
(3) The minor's death.
This article applies to a transfer within the scope of Code Section 44-5-112 made after July 1, 1990, if:
(1) The transfer purports to have been made under former Article 5 of this chapter, known as “The Georgia Gifts to Minors Act”; or
(2) The instrument by which the transfer purports to have been made uses in substance the designation “as custodian under the Uniform Gifts to Minors Act” or “as custodian under the Uniform Transfers to Minors Act” of any other state, and the application of this article is necessary to validate the transfer.
(a) Any transfer of custodial property as now defined in this article made before July 1, 1990, is validated notwithstanding that there was no specific authority in former Article 5 of this chapter, known as “The Georgia Gifts to Minors Act,” for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made.
(b) This article applies to all transfers made before July 1, 1990, in a manner and form prescribed in former Article 5 of this chapter, known as “The Georgia Gifts to Minors Act,” except insofar as the application impairs constitutionally vested rights or extends the duration of custodianships in existence on July 1, 1990.
This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it.
The former Article 5 of this chapter, known as “The Georgia Gifts to Minors Act,” is repealed. To the extent that this new article, by virtue of subsection (b) of Code Section 44-5-132, does not apply to transfers made in a manner prescribed in “The Georgia Gifts to Minors Act” or to the powers, duties, and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of “The Georgia Gifts to Minors Act” does not affect those transfers or those powers, duties, and immunities.
This article shall be known and may be cited as the “Georgia Revised Uniform Anatomical Gift Act.”
As used in this article, the term:
(1) “Adult” means an individual who is at least 18 years of age.
(2) “Agent” means an individual:
(A) Authorized to make health care decisions on the principal's behalf by an advance directive for health care or a durable power of attorney for health care; or
(B) Expressly authorized to make an anatomical gift on the principal's behalf by any other record signed by the principal.
(3) “Anatomical gift” means a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research, or education.
(4) “Decedent” means a deceased individual whose body or part is or may be the source of an anatomical gift. The term includes a stillborn infant and a fetus.
(5) “Disinterested witness” means a witness other than the spouse, child, parent, sibling, grandchild, grandparent, or guardian of the individual who makes, amends, revokes, or refuses to make an anatomical gift. The term does not include a person to which an anatomical gift could pass under Code Section 44-5-149.
(6) “Document of gift” means a donor card or other record used to make an anatomical gift. The term includes a statement or symbol on a driver's license, identification card, or donor registry.
(7) “Donor” means an individual whose body or part is the subject of an anatomical gift.
(8) “Donor registry” means a data base that contains records of anatomical gifts and amendments to or revocations of anatomical gifts.
(9) “Driver's license” means a license or permit issued by the Department of Driver Services to operate a vehicle, whether or not conditions are attached to the license or permit.
(10) “Eye bank” means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of human eyes or portions of human eyes.
(11) “Guardian” means a person appointed by a court to make decisions regarding the support, care, education, health, or welfare of an individual. The term does not include a guardian ad litem.
(12) “Hospital” means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state, or a subdivision of a state.
(13) “Identification card” means an identification card for persons without drivers' licenses issued pursuant to Code Sections 40-5-100 through 40-5-104 by the Department of Driver Services.
(14) “Know” means to have actual knowledge.
(15) “Minor” means an individual who is under 18 years of age.
(16) “Organ procurement organization” means a person designated by the Secretary of the United States Department of Health and Human Services as an organ procurement organization.
(17) “Parent” means a parent whose parental rights have not been terminated.
(18) “Part” means an organ, an eye, or tissue of a human being. The term does not include the whole body.
(19) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(20) “Physician” means an individual authorized to practice medicine or osteopathy under the law of any state.
(21) “Procurement organization” means an eye bank, organ procurement organization, or tissue bank.
(22) “Prospective donor” means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research, or education. The term does not include an individual who has made a refusal.
(23) “Reasonably available” means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.
(24) “Recipient” means an individual into whose body a decedent's part has been or is intended to be transplanted.
(25) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(26) “Refusal” means a record created under Code Section 44-5-145 that expressly states an intent to bar other persons from making an anatomical gift of an individual's body or part.
(27) “Sign” means, with the present intent to authenticate or adopt a record:
(A) To execute or adopt a tangible symbol; or
(B) To attach to or logically associate with the record an electronic symbol, sound, or process.
(28) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(29) “Technician” means an individual determined to be qualified to remove or process parts by an appropriate organization that is licensed, accredited, or regulated under federal or state law. The term includes an individual who is authorized to remove eyes, known as an enucleator.
(30) “Tissue” means a portion of the human body other than an organ or an eye. The term does not include blood unless the blood is donated for the purpose of research or education.
(31) “Tissue bank” means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of tissue.
(32) “Transplant hospital” means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients.
Subject to Code Section 44-5-146, an anatomical gift of a donor's body or part may be made during the life of the donor for the purpose of transplantation, therapy, research, or education in the manner provided in Code Section 44-5-143 by:
(1) The donor, if the donor is an adult or if the donor is a minor and is:
(A) Emancipated; or
(B) Authorized under state law to apply for a driver's license because the donor is at least 16 years of age;
(2) An agent of the donor, unless the advance directive for health care or durable power of attorney for health care prohibits the agent from making an anatomical gift;
(3) A parent of the donor, if the donor is an unemancipated minor; or
(4) The donor's guardian.
(a) A donor may make an anatomical gift:
(1) By authorizing a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor's driver's license or identification card;
(2) In a will;
(3) During a terminal illness or injury of the donor, by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness;
(4) By granting power pursuant to a durable power of attorney for health care or advance directive for health care under Chapter 32 of Title 31; or
(5) As provided in subsection (b) of this Code section.
(b) A donor or other person authorized to make an anatomical gift under Code Section 44-5-142 may make a gift by a donor card or other record signed by the donor or other person making the gift or by authorizing that a statement or symbol indicating that the donor has made an anatomical gift be included on a donor registry. If the donor or other person is physically unable to sign a record, the record may be signed by another individual at the direction of the donor or other person and shall:
(1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and
(2) State that it has been signed and witnessed as provided in paragraph (1) of this subsection.
(c) Revocation, suspension, expiration, or cancellation of a driver's license or identification card upon which an anatomical gift is indicated does not invalidate the gift.
(d) An anatomical gift made by will takes effect upon the donor's death whether or not the will is probated. Invalidation of the will after the donor's death does not invalidate the gift.
(a) Subject to Code Section 44-5-146, a donor or other person authorized to make an anatomical gift under Code Section 44-5-142 may amend or revoke an anatomical gift by:
(1) A record signed by:
(A) The donor;
(B) The other person; or
(C) Subject to subsection (b) of this Code section, another individual acting at the direction of the donor or the other person if the donor or other person is physically unable to sign; or
(2) A later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift, either expressly or by inconsistency.
(b) A record signed pursuant to subparagraph (a)(1)(C) of this Code section shall:
(1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and
(2) State that it has been signed and witnessed as provided in paragraph (1) of this subsection.
(c) Subject to Code Section 44-5-146, a donor or other person authorized to make an anatomical gift under Code Section 44-5-142 may revoke an anatomical gift by the destruction or cancellation of the document of gift, or the portion of the document of gift used to make the gift, with the intent to revoke the gift.
(d) A donor may amend or revoke an anatomical gift that was not made in a will by any form of communication during a terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness.
(e) A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills under Chapter 4 of Title 53 or as provided in subsection (a) of this Code section.
(a) An individual may refuse to make an anatomical gift of the individual's body or part by:
(1) A record signed by:
(A) The individual; or
(B) Subject to subsection (b) of this Code section, another individual acting at the direction of the individual if the individual is physically unable to sign;
(2) The individual's will, whether or not the will is admitted to probate or invalidated after the individual's death; or
(3) Any form of communication made by the individual during the individual's terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness.
(b) A record signed pursuant to subparagraph (a)(1)(B) of this Code section shall:
(1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the individual; and
(2) State that it has been signed and witnessed as provided in paragraph (1) of this subsection.
(c) An individual who has made a refusal may amend or revoke the refusal:
(1) In the manner provided in subsection (a) of this Code section for making a refusal;
(2) By subsequently making an anatomical gift pursuant to Code Section 44-5-143 that is inconsistent with the refusal; or
(3) By destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal.
(d) Except as otherwise provided in subsection (h) of Code Section 44-5-146, in the absence of an express, contrary indication by the individual set forth in the refusal, an individual's unrevoked refusal to make an anatomical gift of the individual's body or part bars all other persons from making an anatomical gift of the individual's body or part.
(a) Except as otherwise provided in subsection (g) of this Code section and subject to subsection (f) of this Code section, in the absence of an express, contrary indication by the donor, a person other than the donor is barred from making, amending, or revoking an anatomical gift of a donor's body or part if the donor made an anatomical gift of the donor's body or part under Code Section 44-5-143 or an amendment to an anatomical gift of the donor's body or part under Code Section 44-5-144.
(b) A donor's revocation of an anatomical gift of the donor's body or part under Code Section 44-5-144 is not a refusal and does not bar another person specified in Code Sections 44-5-142 and 44-5-147 from making an anatomical gift of the donor's body or part under Code Section 44-5-143 or 44-5-148.
(c) If a person other than the donor makes an unrevoked anatomical gift of the donor's body or part under Code Section 44-5-143 or an amendment to an anatomical gift of the donor's body or part under Code Section 44-5-144, another person may not make, amend, or revoke the gift of the donor's body or part under Code Section 44-5-148.
(d) A revocation of an anatomical gift of a donor's body or part under Code Section 44-5-144 by a person other than the donor does not bar another person from making an anatomical gift of the body or part under Code Section 44-5-143 or 44-5-148.
(e) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under Code Section 44-5-142, an anatomical gift of a part is neither a refusal to give another part nor a limitation on the making of an anatomical gift of another part at a later time by the donor or another person.
(f) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under Code Section 44-5-142, an anatomical gift of a part for one or more of the purposes set forth in Code Section 44-5-142 is not a limitation on the making of an anatomical gift of the part for any of the other purposes by the donor or any other person under Code Section 44-5-143 or 44-5-148.
(g) If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor's body or part.
(h) If an unemancipated minor who signed a refusal dies, a parent of the minor who is reasonably available may revoke the minor's refusal.
(a) Subject to subsections (b) and (c) of this Code section and unless barred by Code Section 44-5-145 or 44-5-146, an anatomical gift of a decedent's body or part for the purpose of transplantation, therapy, research, or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed:
(1) An agent of the decedent at the time of death who could have made an anatomical gift under paragraph (2) of Code Section 44-5-142 immediately before the decedent's death;
(2) The spouse of the decedent;
(3) Adult children of the decedent;
(4) Parents of the decedent;
(5) Adult siblings of the decedent;
(6) Adult grandchildren of the decedent;
(7) Grandparents of the decedent;
(8) The persons who were acting as the guardians of the person of the decedent at the time of death;
(9) Any other person having the authority to dispose of the decedent's body; and
(10) A representative ad litem who shall be appointed by a court of competent jurisdiction forthwith upon a petition heard ex parte filed by any person, which representative ad litem shall ascertain that no person of higher priority exists and is reasonably available who objects to the gift of all or any part of the decedent's body and that no evidence exists of the decedent's having made a communication expressing a desire that his or her body or body parts not be donated upon death.
(b) If there is more than one member of a class listed in paragraph (1), (3), (4), (5), (6), (7), or (8) of subsection (a) of this Code section entitled to make an anatomical gift, an anatomical gift may be made by a member of the class only if the person to which the gift may pass under Code Section 44-5-149 in good faith obtains a representation from the member that the member does not know of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available.
(c) A person may not make an anatomical gift if, at the time of the decedent's death, a person in a prior class under subsection (a) of this Code section is reasonably available to make or to object to the making of an anatomical gift.
(a) A person authorized to make an anatomical gift under Code Section 44-5-147 may make an anatomical gift by a document of gift signed by the person making the gift or by that person's oral communication that is electronically recorded or is contemporaneously reduced to a record and signed by the individual receiving the oral communication.
(b) Subject to subsection (c) of this Code section, an anatomical gift by a person authorized under Code Section 44-5-147 may be amended or revoked orally or in a record by any member of a prior class who is reasonably available. If more than one member of the prior class is reasonably available, the gift made by a person authorized under Code Section 44-5-147 may be:
(1) Amended only if a majority of the reasonably available members agree to the amending of the gift; or
(2) Revoked only if a majority of the reasonably available members agree to the revoking of the gift or if they are equally divided as to whether to revoke the gift.
(c) A revocation under subsection (b) of this Code section is effective only if, before an incision has been made to remove a part from the donor's body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital, or physician or technician knows of the revocation.
(a) An anatomical gift may be made to the following persons named in the document of gift:
(1) A hospital; accredited medical school, dental school, college, or university; organ procurement organization; or other appropriate person, for research or education;
(2) Subject to subsection (b) of this Code section, an individual designated by the person making the anatomical gift if the individual is the recipient of the part; or
(3) An eye bank or tissue bank.
(b) If an anatomical gift to an individual under paragraph (2) of subsection (a) of this Code section cannot be transplanted into the individual, the part passes in accordance with subsection (g) of this Code section in the absence of an express, contrary indication by the person making the anatomical gift.
(c) If an anatomical gift of one or more specific parts or of all parts is made in a document of gift that does not name a person described in subsection (a) of this Code section but identifies the purpose for which an anatomical gift may be used, the following rules apply:
(1) If the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank;
(2) If the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank;
(3) If the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ; and
(4) If the part is an organ, an eye, or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization.
(d) For the purpose of subsection (c) of this Code section, if there is more than one purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift shall be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education.
(e) If an anatomical gift of one or more specific parts is made in a document of gift that does not name a person described in subsection (a) of this Code section and does not identify the purpose of the gift, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (g) of this Code section.
(f) If a document of gift specifies only a general intent to make an anatomical gift by words such as “donor,” “organ donor,” or “body donor,” or by a symbol or statement of similar import, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (g) of this Code section.
(g) For purposes of subsections (b), (e), and (f) of this Code section, the following rules apply:
(1) If the part is an eye, the gift passes to the appropriate eye bank;
(2) If the part is tissue, the gift passes to the appropriate tissue bank; and
(3) If the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ.
(h) An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under paragraph (2) of subsection (a) of this Code section, passes to the organ procurement organization as custodian of the organ.
(i) If an anatomical gift does not pass pursuant to subsections (a) through (h) of this Code section or the decedent's body or part is not used for transplantation, therapy, research, or education, custody of the body or part passes to the person under obligation to dispose of the body or part.
(j) A person may not accept an anatomical gift if the person knows that the gift was not effectively made under Code Sections 44-5-143 and 44-5-148 or if the person knows that the decedent made a refusal under Code Section 44-5-145 that was not revoked. For purposes of this subsection, if a person knows that an anatomical gift was made on a document of gift, the person is deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift.
(k) Except as otherwise provided in paragraph (2) of subsection (a) of this Code section, nothing in this article affects the allocation of organs for transplantation or therapy.
(a) The following persons shall make a reasonable search of an individual who the person reasonably believes is dead or near death for a document of gift or other information identifying the individual as a donor or as an individual who made a refusal:
(1) A law enforcement officer, firefighter, paramedic, emergency medical technician, or other first responder finding the individual, in accordance with subsection (b.1) of Code Section 17-6-11; and
(2) If no other source of the information is immediately available, a hospital, as soon as practical after the individual's arrival at the hospital.
(b) If a document of gift or a refusal to make an anatomical gift is located by the search required by subsection (a) of this Code section and the individual or deceased individual to whom it relates is taken to a hospital, the person responsible for conducting the search shall send the document of gift or refusal to the hospital.
(c) A person is not subject to criminal or civil liability for failing to discharge the duties imposed by this Code section but may be subject to administrative sanctions.
(a) A document of gift need not be delivered during the donor's lifetime to be effective.
(b) Upon or after an individual's death, a person in possession of a document of gift or a refusal to make an anatomical gift with respect to the individual shall allow examination and copying of the document of gift or refusal by a person authorized to make or object to the making of an anatomical gift with respect to the individual or by a person to which the gift could pass under Code Section 44-5-149.
(a) When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of any donor registry that it knows exists for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift.
(b) The Department of Driver Services shall make donor information reasonably available to a procurement organization.
(c) When a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a part that is or could be the subject of an anatomical gift for transplantation, therapy, research, or education from a donor or a prospective donor. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization knows that the individual expressed a contrary intent.
(d) Unless prohibited by law other than this article, at any time after a donor's death, the person to which a part passes under Code Section 44-5-149 may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose.
(e) Unless prohibited by law other than this article, an examination under subsection (c) or (d) of this Code section may include an examination of all medical and dental records of the donor or prospective donor.
(f) Unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal, if any.
(g) Upon referral by a hospital under subsection (a) of this Code section, a procurement organization shall make a reasonable search for any person listed in Code Section 44-5-147 having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended, or revoked, it shall promptly advise the other person of all relevant information.
(h) Subject to subsection (i) of Code Section 44-5-149 and Code Section 44-5-151, the rights of the person to which a part passes under Code Section 44-5-149 are superior to the rights of all others with respect to the part. The person may accept or reject an anatomical gift in whole or in part. Subject to the terms of the document of gift and this article, a person that accepts an anatomical gift of an entire body may allow embalming, burial, or cremation and use of remains in a funeral service. If the gift is of a part, the person to which the part passes under Code Section 44-5-149, upon the death of the donor and before embalming, burial, or cremation, shall cause the part to be removed without unnecessary mutilation.
(i) Neither the physician who attends the decedent at death nor the physician who determines the time of the decedent's death may participate in the procedures for removing or transplanting a part from the decedent.
(j) A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove.
Each hospital in this state shall enter into agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts.
(a) Except as otherwise provided in subsection (b) of this Code section, a person that for valuable consideration knowingly purchases or sells a part for transplantation or therapy if removal of a part from an individual is intended to occur after the individual's death commits a felony and upon conviction is subject to a fine not exceeding $50,000.00 or imprisonment not exceeding five years, or both.
(b) A person may charge a reasonable amount for the removal, processing, preservation, quality control, storage, transportation, implantation, or disposal of a part.
A person that, in order to obtain a financial gain, intentionally falsifies, forges, conceals, defaces, or obliterates a document of gift, an amendment or revocation of a document of gift, or a refusal commits a felony and upon conviction is subject to a fine not exceeding $50,000.00 or imprisonment not exceeding five years, or both.
(a) A person that acts in accordance with this article or with the applicable anatomical gift law of another state, or attempts in good faith to do so, is not liable for the act in a civil action, criminal prosecution, or administrative proceeding.
(b) Neither the person making an anatomical gift nor the donor's estate is liable for any injury or damage that results from the making or use of the gift.
(c) In determining whether an anatomical gift has been made, amended, or revoked under this article, a person may rely upon representations of an individual listed in paragraph (2), (3), (4), (5), (6), or (7) of subsection (a) of Code Section 44-5-147 relating to the individual's relationship to the donor or prospective donor unless the person knows that the representation is untrue.
(a) A document of gift is valid if executed in accordance with:
(1) This article;
(2) The laws of the state or country where it was executed; or
(3) The laws of the state or country where the person making the anatomical gift was domiciled, has a place of residence, or was a national at the time the document of gift was executed.
(b) If a document of gift is valid under this Code section, the law of this state governs the interpretation of the document of gift.
(c) A person may presume that a document of gift or amendment of an anatomical gift is valid unless that person knows that it was not validly executed or was revoked.
(a) The Department of Driver Services shall make available to procurement organizations or secure data centers maintained and managed at the direction of a procurement organization the name, license number, date of birth, gender, and most recent address of any person who obtains an organ donor's license; provided, however, that the gender information shall only be made available to a procurement organization or secure data center if such organization or center has sufficient funds to cover the associated costs with providing such information. Information so obtained by such organizations shall be used for the purpose of establishing a state-wide organ donor registry accessible to organ tissue and eye banks authorized to function as such in this state and shall not be further disseminated.
(b) A donor registry shall:
(1) Allow a donor or other person authorized under Code Section 44-5-142 to include on the donor registry a statement or symbol that the donor has made, amended, or revoked an anatomical gift;
(2) Be accessible to a procurement organization to allow it to obtain relevant information on the donor registry to determine, at or near death of the donor or a prospective donor, whether the donor or prospective donor has made, amended, or revoked an anatomical gift; and
(3) Be accessible for purposes of paragraphs (1) and (2) of this subsection seven days a week on a 24 hour basis.
(c) Personally identifiable information on a donor registry about a donor or prospective donor may not be used or disclosed without the express consent of the donor, prospective donor, or person that made the anatomical gift for any purpose other than to determine, at or near death of the donor or prospective donor, whether the donor or prospective donor has made, amended, or revoked an anatomical gift; provided, however, this shall not preclude the use of aggregated demographic information for the purposes of annual reporting, research, or education.
(d) This Code section does not prohibit any person from creating or maintaining a donor registry that is not established by or under contract with this state. Any such registry shall comply with subsections (b) and (c) of this Code section.
If a prospective donor has an advance directive for health care in accordance with Chapter 32 of Title 31 or a declaration signed by a prospective donor, unless it expressly provides to the contrary, measures necessary to ensure the medical suitability of an organ for transplantation or therapy may not be withheld or withdrawn from the prospective donor.
(a) A medical examiner and procurement organizations shall cooperate with each other to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education.
(b) If a medical examiner receives notice from a procurement organization that an anatomical gift might be available or was made with respect to a decedent whose body is under the jurisdiction of the medical examiner and a postmortem examination is going to be performed, unless the medical examiner denies recovery in accordance with Code Section 44-5-159.2, the medical examiner or designee shall conduct, when practicable, a postmortem examination of the body or the part in a manner and within a period compatible with its preservation for the purposes of the gift. The date and location of such examinations shall occur as specified in the agreement as provided for in subsection (e) of Code Section 44-5-159.2.
(c) A part may not be removed from the body of a decedent under the jurisdiction of a medical examiner for transplantation, therapy, research, or education unless the part is the subject of an anatomical gift. The body of a decedent under the jurisdiction of the medical examiner may not be delivered to a person for research or education unless the body is the subject of an anatomical gift. This subsection shall not preclude a medical examiner from performing the medicolegal autopsy upon the body or parts of a decedent under the jurisdiction of the medical examiner or from using the body or parts of a decedent under the jurisdiction of the medical examiner for the purposes of education, training, and research required by the medical examiner.
(a) Upon specific request of a procurement organization, and in accordance with the procedures set forth under the agreement established pursuant to subsection (e) of this Code section, a medical examiner shall release to the procurement organization the name, contact information, and available medical and social history of a decedent whose body is under the jurisdiction of the medical examiner. If the decedent's body or part is medically suitable for transplantation, therapy, research, or education, and the gift or procurement does occur, the medical examiner shall release postmortem examination results to the procurement organization. The procurement organization may make a subsequent disclosure of the postmortem examination results or other information received from the medical examiner only if relevant to transplantation, therapy, research, or education.
(b) The medical examiner may conduct a medicolegal investigation by reviewing all medical records, laboratory test results, x-rays, other diagnostic results, and other information that any person possesses about a donor or prospective donor whose body is under the jurisdiction of the medical examiner that the medical examiner determines may be relevant to the investigation.
(c) A person that has any information requested by a medical examiner pursuant to subsection (b) of this Code section shall provide that information as expeditiously as possible to allow the medical examiner to conduct the medicolegal investigation within a period compatible with the preservation of parts for the purpose of transplantation, therapy, research, or education.
(d) If an anatomical gift has been or might be made of a part of a decedent whose body is under the jurisdiction of the medical examiner and a postmortem examination is not required, or the medical examiner determines that a postmortem examination is required but that the recovery of the part that is the subject of an anatomical gift will not interfere with the examination, the medical examiner and procurement organization shall cooperate in the timely removal of the part from the decedent for the purpose of transplantation, therapy, research, or education.
(e) The medical examiner and procurement organizations shall enter into an agreement signed by both parties setting forth protocols and procedures to govern relations between the parties when an anatomical gift of a part from a decedent under the jurisdiction of the medical examiner has been or might be made, but the medical examiner believes that the recovery of the part could interfere with the postmortem investigation into the decedent's cause or manner of death. Decisions regarding the recovery of organs, tissue, and eyes from such a decedent, and decisions about approaches to tissue donation cases compared with organ donation cases, shall be made in accordance with the agreement. In the event that a medical examiner denies recovery of an anatomical gift, the procurement organization may request the regional medical examiner serving the county having jurisdiction over the death to reconsider the denial and to permit the recovery to proceed; provided, however, that if a county having jurisdiction over the death does not have a county medical examiner as defined in paragraph (2) of Code Section 45-16-21, and a recovery is denied as provided herein, the procurement organization may request the chief medical examiner appointed pursuant to Code Section 35-3-153 to reconsider the denial and to permit the recovery to proceed. The parties shall evaluate the effectiveness of the protocols and procedures at regular intervals but no less frequently than every two years. A medical examiner may limit its involvement and agreements with procurement organizations to one procurement organization, but may work with more than one procurement organization in the discretion of the medical examiner.
(f) If the medical examiner or designee allows recovery of a part under subsection (d) or (e) of this Code section, the procurement organization, upon request, shall cause the physician or technician who removes the part to provide the medical examiner with a record describing the condition of the part, a biopsy, a photograph, and any other information and observations that would assist in the postmortem examination.
(g) If a medical examiner or designee is required to be present at a removal procedure pursuant to an agreement entered into under subsection (e) of this Code section, upon request the procurement organization requesting the recovery of the part shall reimburse the medical examiner or designee for the additional costs incurred in complying with subsection (e) of this Code section.
This article applies to an anatomical gift or amendment to, revocation of, or refusal to make an anatomical gift, whenever made.
This article modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit or supersede Section 101(a) of that act, 15 U.S.C. Section 7001, or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).
Title by prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by law.
(a) In order for possession to be the foundation of prescriptive title, it:
(1) Must be in the right of the possessor and not of another;
(2) Must not have originated in fraud except as provided in Code Section 44-5-162;
(3) Must be public, continuous, exclusive, uninterrupted, and peaceable; and
(4) Must be accompanied by a claim of right.
(b) Permissive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party.
(a) In order for fraud to prevent the possession of property from being the foundation of prescription, such fraud must be actual or positive and not merely constructive or legal.
(b) When actual or positive fraud prevents or deters another party from acting, prescription shall not run until such fraud is discovered.
Possession of real property in conformance with the requirements of Code Section 44-5-161 for a period of 20 years shall confer good title by prescription to the property against everyone except the state and those persons laboring under the disabilities stated in Code Section 44-5-170.
Possession of real property under written evidence of title in conformance with the requirements of Code Section 44-5-161 for a period of seven years shall confer good title by prescription to the property against everyone except the state and those persons laboring under the disabilities stated in Code Section 44-5-170, provided that, if the written title is forged or fraudulent and if the person claiming adverse possession had actual notice of such forgery or fraud when he commenced his possession, no prescription may be based on such possession.
Actual possession of lands may be evidenced by enclosure, cultivation, or any use and occupation of the lands which is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another. As to any claim which is not vested under this chapter prior to July 1, 2008, no party shall attempt to establish possession of lands for purposes of this article for any lands depicted within the applicable tract identified on the official map of any railroad filed with the Interstate Commerce Commission pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as amended, unless such party establishes that such occupancy interferes with the operations of such railroad corporation or railroad company; provided, however, that each railroad corporation and railroad company shall file and record such official map of the railroad with the superior court for the county in which such land depicted on such official railroad map is situated. Any court of this state shall take judicial notice of the information set forth in any such official map properly filed and recorded by such railroad corporation or railroad company. This Code section shall not be applied to adverse claims of aboveground utilities which have been initiated but which have not vested prior to July 1, 2008; provided, however, that a railroad corporation or railroad company shall not be precluded from enforcing rights of ownership against any adverse claims which have not vested.
(a) Constructive possession of lands exists where a person who has paper title to a tract of land is in actual possession of only a part of such tract. In such case, his or her possession shall be construed to extend to the boundary of such tract. With respect to a railroad corporation or railroad company, construction of the road bed and track on the railroad right of way shall constitute actual possession and occupancy of all lands depicted within the applicable tract identified on the official map of the railroad filed with the Interstate Commerce Commission pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as amended; provided, however, that each railroad corporation and railroad company shall file and record such official map of the railroad with the superior court for the county in which such land depicted on such official railroad map is situated. Any court of this state shall take judicial notice of the information set forth in any such official map properly filed and recorded by such railroad corporation or railroad company.
(b) When land is included in the boundaries of more than one tract so that adjacent owners are in constructive possession of the same land, no prescription shall arise in favor of any of such owners.
Possession under a duly recorded deed shall be construed to extend to all the contiguous property embraced in such deed. To the extent that any such property is bounded on one or more sides by a railroad, and the description of the property contained in such deed makes reference to the railroad or the railroad right of way as a boundary for such property, such reference shall be construed to mean that the boundary line is located at the edge of the tract depicted on the official map of the railroad filed with the Interstate Commerce Commission pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as amended, and such depictions contained on such official railroad map shall be conclusive as to the location of the boundary line between the property of the railroad and any adjoining property owner as of the date of such railroad map; provided, however, that each railroad corporation and railroad company shall file and record such official map of the railroad with the superior court for the county in which such land depicted on such official railroad map is situated. Any court of this state shall take judicial notice of the information set forth in any such official map properly filed and recorded by such railroad corporation or railroad company.
(a) Whenever mineral rights are conveyed or whenever real property is conveyed in fee simple but the mineral rights to such property are reserved by the grantor, the owner of the real property in fee simple or his heirs or assigns may gain title to such mineral rights by adverse possession if the owner of the mineral rights or his heirs or assigns have neither worked nor attempted to work the mineral rights nor paid any taxes due on them for a period of seven years since the date of the conveyance and for seven years immediately preceding the filing of the petition provided for in subsection (b) of this Code section.
(b) In order to obtain absolute title to mineral rights in the circumstances described in subsection (a) of this Code section:
(1) The owner of the real property in fee simple or his heirs or assigns may file in the superior court for the county where the land is located a petition requesting relief in the nature of declaratory judgment. The petition:
(A) Shall contain all essential, required paragraphs, including jurisdiction;
(B) Shall contain the name and last known address of the grantor of the property reserving the mineral rights and the names and last known addresses of his heirs or assigns or any other person known by the plaintiff to have an interest in the mineral rights;
(C) Shall show:
(i) That the plaintiff or his predecessors in title were granted and obtained a deed for the property in question;
(ii) That the conveyance reserved mineral rights or that the plaintiff or his predecessors in title conveyed the mineral rights and reserved or retained the fee simple title to the real property; and
(iii) That, for a period of seven years preceding the filing of the petition after the conveyance, the owner of the mineral rights or his heirs or assigns have neither worked nor attempted to work the mineral rights nor paid taxes on them; and
(D) Shall include any and all prayers regarding the land that the plaintiff may desire. Specifically, the petition may pray that the court find that the plaintiff has obtained title to the mineral rights through adverse possession and that the plaintiff be granted title to mineral rights;
(2) Upon a finding in the plaintiff's favor, the court shall issue a judgment and decree declaring that the mineral rights involved have been lost and that the plaintiff has gained absolute title to such mineral rights; and
(3) Service shall be perfected in the same manner as service on defendants in an in rem proceeding, including service by publication.
(c) Nothing in this Code section shall restrict the court from granting further plenary relief, whether legal or equitable; and the failure of the petition in the plaintiff's favor shall not affect the right of the plaintiff to any other relief, legal or equitable, to which he may be entitled.
(d) Any person named in the petition or any person having an interest in the mineral rights shall have the right to intervene in a case brought under this Code section.
(e) In order to maintain the status quo pending the adjudication of the questions or to preserve equitable rights, the court may grant injunctions and other interlocutory extraordinary relief.
(f) Nothing in this Code section shall apply to a lease for a specific number of years nor to an owner of mineral rights who has leased the mineral rights in writing to a licensed mining operator as defined in Part 3 of Article 2 of Chapter 4 of Title 12.
Possession of land shall constitute notice of the rights or title of the occupant. Possession by the husband with the wife is presumptively the possession of the husband, but this presumption may be rebutted.
Prescription shall not run against the rights of a minor during his or her minority, a person incompetent by reason of mental illness or intellectual disability so long as the mental illness or intellectual disability lasts, or a person imprisoned during his or her imprisonment. After any such disability is removed, prescription shall run against the person holding a claim to realty or personalty.
Prescription shall not run against persons under disability during the period of the disability. Upon removal of the disability the prior possession may be tacked or added to the subsequent possession to make out the prescription.
An inchoate prescriptive title may be transferred by a person in possession to his successor so that successive possessions may be tacked to make out the prescription.
(a) Prescription shall not run against an unrepresented estate until representation is had thereon, provided such representation commences within five years.
(b) Prescription shall not run against a joint title which cannot be severally enforced or where any of the joint owners labor under one of the disabilities specified in Code Section 44-5-170.
(c) Prescription shall not run against a party when his action, timely commenced, is involuntarily dismissed or voluntarily dismissed for the first time if he recommences the same within six months.
In making out a prescriptive title, an innocent purchaser may not tack to the time period of his own possession the time of possession of a grantor whose possession originated through fraud against the true owner.
An incorporeal right which may be lawfully granted, such as a right of way or the right to throw water upon the land of another, may be acquired by prescription.
Prescription shall not run against the owner or holder of a mortgage, a deed to secure debt, a bill of sale to secure debt, or any other instrument creating a lien on or conveying an interest in real or personal property as security for debt in favor of a person who has actual or constructive notice of such instrument.
Possession of personal property in conformance with the requirements of Code Section 44-5-161 for a period of four years confers title to the property by prescription. No prescription arises if the property is concealed, is removed from the state, or is otherwise not subject to reclamation.
The state shall hold a lien upon all the property of a convicted offender for the costs of the prosecution against him.
(a) As used in this Code section, the term “lot” means any lot or portion of a lot in a cemetery owned by a county, municipality, or consolidated government which has not been used for the interment of human remains and for which no provision for perpetual care was made at the time the lot was sold or at any time subsequent to the time the lot was sold.
(b) The owner, the governing board, or other officials having control over a cemetery may maintain, in the superior court in the county in which the cemetery is located, a proceeding for the termination and forfeiture of the rights and interests of an owner of any lot or lots in the cemetery whenever the present owner of the lot is unknown to the owner, the governing board, or other officials and a period of at least 75 years has passed since any portion of the lot has been used for interment purposes.
(c)(1) The proceeding shall be commenced by the filing of a verified petition with the clerk of the superior court.
(2) The petition shall:
(A) Identify the lot or lots;
(B) State that the portion of the lot to be reclaimed has not been used for the interment of human remains and that a core or sound test has been conducted to determine that the portion contains no remains;
(C) State that the present owner of the lot is unknown to the owner, governing board, or other officials;
(D) State that a period of at least 75 years has passed since any portion of the lot was used for interment purposes; and
(E) Request that the court issue an order declaring the lot abandoned and further declaring all of the rights and interests of the owner therein terminated and forfeited.
(3) The petition shall be accompanied by an affidavit by the owner, the governing board, or other officials stating that a diligent search to locate the present owner of the lot has been made but that such owner has not been located.
(d) Upon the filing of the petition and affidavit, the clerk of the superior court shall fix a time for a hearing on the petition, which time shall be not less than 30 days nor more than 90 days after the date of the filing.
(e)(1) Notice of the hearing shall be given by the owner, the governing board, or other officials by posting copies of the notice in three conspicuous places in the cemetery which is owned or operated by the owner, the governing board, or other officials and by mailing a copy of the notice by registered or certified mail or statutory overnight delivery to the last known owner of the lot; and a notice of the hearing shall be published once each week for three successive weeks in some newspaper of general circulation in the county, the first publication being made not less than 30 days before the date of the hearing.
(2) The notice shall identify the lot and shall state:
(A) The name and address of the last known owner of the lot;
(B) That a hearing will be held to determine whether or not the present owner of the lot shall have his rights and interests therein terminated and forfeited by a declaration of abandonment of the lot; and
(C) The time and place of the hearing.
(f) If, upon the hearing, the court determines from the evidence presented that the present owner of the lot is unknown, that the owner, the governing board, or other officials have made a diligent search to locate the present owner, that a period of 75 years or more has passed since any portion of the lot has been used for human interment, and that a core or sound test has been conducted to determine that the lot contains no remains, a decree shall be entered adjudicating such lot, lots, or parts thereof to have been abandoned and further ordering the subsequent termination and forfeiture of all rights and interests of the owner therein.
(g) The court shall dismiss the proceeding if it determines any of the following from the evidence which is presented:
(1) That any of the material facts stated in the petition are not true;
(2) That the identity of the present owner of the lot is known; or
(3) That the owner, the governing board, or other officials have not made a diligent search to locate the present owner.
(h)(1) Upon order of the court declaring the lot to be abandoned, the full title to such lot shall revert to the cemetery.
(2) The order of the court shall not become final until one year after the date on which it is entered. During that time, any person may petition the court to reopen the proceeding; and the court, after notice to the board or other officials, may reopen the proceeding, may hear and consider any additional evidence regarding the ownership of the lot, and may modify or amend the order which it made, provided that, if the court makes any of the determinations mentioned by subsection (g) of this Code section, it shall dismiss the proceeding.
(i)(1) Within 30 days after the date on which the court order is entered, the cemetery owner, the governing board, or other officials shall publish notice of the order once in a newspaper of general circulation in the county in which the cemetery is located and shall mail a copy of the order by registered or certified mail or statutory overnight delivery to the last known owner of the lot or to the last known owner of the right of interment in the lot.
(2) The notice which is mailed and published shall identify the lot which is covered by the order and shall state:
(A) The name and address of the last known owner of the lot;
(B) That the court has ordered that the lot is to be declared abandoned and that the court has further ordered that the rights and interests of the owner therein are to be subsequently terminated and forfeited; and
(C) The date upon which the order of the court will become final.
(j) The lot shall be deemed abandoned and the rights and interests of the present owner therein shall be terminated and forfeited as of the date upon which the order of the court becomes final. Thereafter, the cemetery shall be the owner of the lot and may resell or otherwise recover it.
(k) The proceeds derived from any sale of a lot, ownership of which is obtained as provided in this Code section, shall be used as follows:
(1) First, to reimburse the petitioner for the costs of the action and necessary expenses, including attorney's fees, incurred by the petitioner in the proceeding; and
(2) Then, of the remainder of the proceeds:
(A) Not less than 75 percent shall be held in trust and shall be used only for the expenses of administration, maintenance, restoration, preservation, and other improvements of the cemetery; and
(B) Any amounts remaining thereafter shall be used for immediate improvements and maintenance of the cemetery.
(l) In no event shall any existing monument, retaining wall, fence, bench, or other ornamentation be altered or removed by the petitioner, by his agent or employee, or by any subsequent owner of a lot reclaimed and sold as provided in this Code section.
After an owner dedicates land to public use either expressly or by his actions and the land is used by the public for such a length of time that accommodation of the public or private rights may be materially affected by interruption of the right to use such land, the owner may not afterwards appropriate the land to private purposes.
If two estates in the same property shall unite in the same person in his individual capacity, the lesser estate shall be merged into the greater.
As a general rule, a party may not hold a lien on his own property; but the owner of property which is subject to a lien created or imposed against the property by another person may protect himself by purchasing the lien and levying it on other property of the person liable to pay the same or holding it as a claim against such person.
An absolute or fee simple estate is one in which the owner is entitled to the entire property with unconditional power of disposition during his life and which descends to his heirs and legal representatives upon his death intestate.
The word “heirs” or its equivalent is not necessary to create an absolute estate. Every properly executed conveyance shall be construed to convey the fee unless a lesser estate is mentioned and limited in that conveyance. If a lesser estate is expressly limited, the courts shall not, by construction, increase such estate into a fee but, disregarding all technical rules, shall give effect to the intention of the maker of the instrument, as far as the same is lawful, if the intention can be gathered from the contents of the instrument. If the court cannot gather the intention of the maker from the contents of the instrument, it may hear parol evidence to prove the maker's intention.
An absolute estate may be created to commence in the future, and the fee may be in abeyance without detriment to the rights of subsequent remainders. A fee may be limited upon a fee, either by deed or will, where the plain intention of the grantor or testator requires it and no other rule of law is violated thereby.
Limitations over to “heirs,” “heirs of the body,” “lineal heirs,” “lawful heirs,” “issue,” or words of similar meaning shall be held to mean “children” whether the parents are alive or dead. Under such words the children and the descendants of deceased children by representation in being at the time of the vesting of the estate shall take.
(a) Estates tail are prohibited and abolished and the law shall not presume or imply such an estate. Gifts or grants to a person and the heirs of his body, to his male heirs or female heirs, to his heirs by a particular person, to his children, or to his issue shall convey an absolute fee.
(b) Limitations which, by the English rules of construction, would create an estate tail by implication shall give a life estate to the first taker and with remainder over in fee to his children and their descendants, as provided in Code Section 44-6-23, and, if none is living at the time of his death, with remainder over in fee to the beneficiaries intended by the maker of the instrument.
All limitations over after the death of the first taker, upon his “dying without heirs,” “dying without issue,” “dying without leaving heirs or issue,” “on failure of issue,” or other and equivalent terms, shall be construed to mean a failure of heirs or issue at the time of the death of the first taker and shall convey the estate in the manner prescribed in Code Section 44-6-24.
An estate may be granted upon either express or implied conditions. The estate shall commence, be enlarged, or be defeated upon the performance or breach of the conditions.
Conditions may be either precedent or subsequent; conditions precedent require performance before the estate shall vest, and conditions subsequent may cause a forfeiture of a vested estate. The law favors conditions to be subsequent rather than precedent and to be remediable by damages rather than by forfeiture.
Upon the breach of a condition subsequent, which breach works a forfeiture of the estate, the person to whom the estate is limited may enter immediately.
Conditions which are repugnant to the estate granted, which require impossible or illegal acts to be performed, or which in themselves are contrary to the policy of the law are void.
No legal disability except that of being non compos mentis shall excuse a person from failing to comply with a condition annexed to his estate. No notice of such condition is required to be given by the person claiming under the limitation over.
(a) An estate in remainder is one limited to be enjoyed after another estate is terminated or at a time specified in the future.
(b) An estate in reversion is the residue of an estate, usually the fee left in the grantor and his heirs after the termination of a particular estate which he has granted out of it.
(c) The rights of the reversioner are the same as those of a vested remainderman in fee.
Remainders are either vested or contingent. A vested remainder is a remainder which is limited to a certain person at a certain time or which is dependent upon the happening of a necessary event. A contingent remainder is a remainder which is limited to an uncertain person or which is dependent upon an event which may or may not happen.
Since no particular estate is necessary to sustain a remainder, the defeat of the particular estate for any cause does not destroy the remainder.
Estates in remainder may not be created by parol.
Estates in remainder may be created for persons not in being. If such a remainder is vested, it will open to take in all persons within the description who come into being up to the time the enjoyment of the estate commences.
The law favors the vesting of remainders in all cases of doubt. In construing wills, words of survivorship shall refer to those survivors living at the time of the death of the testator in order to vest remainders unless a manifest intention to the contrary shall appear.
The assent of an executor to a legacy to a life tenant inures to the benefit of the remainderman. At the termination of the life estate, the remainderman may take possession immediately unless the will provides for a sale or other act to be done for the purpose of or prior to a division, in which case the executor may recover possession for the purpose of executing the will.
Limitations over upon the marriage of a widow shall be valid unless such limitations are manifestly intended to operate as a restraint upon the free action of such widow in respect to marriage and are not simply prudent provisions for the protection of the interest of children or others in such event, in which case such limitations are void.
Estates which may extend during the life of a person but which must terminate at his death are deemed life estates during their existence. Estates during widowhood are life estates.
An estate for life may be either for the life of the tenant or for the life of some other person or persons.
(a) An estate for life may be created by deed or will, by express agreement of the parties, or by operation of law.
(b) A life estate cannot be created in property which will be destroyed on being used.
The tenant for life shall be entitled to the full use and enjoyment of the property if in such use he exercises the ordinary care of a prudent man for its preservation and protection and commits no acts which would permanently injure the remainder or reversion interest. For the want of such care or the willful commission of such acts, the tenant for life shall forfeit his interest to the remainderman if the remainderman elects to claim immediate possession.
The natural increase of the property shall belong to the tenant for life. Any extraordinary accumulation of the corpus, such as an issue of new stock upon the share of a corporation, shall attach to the corpus and go with it to the remainderman.
If a life estate is terminated by the act of someone other than the tenant for life, the tenant and his legal representative shall be entitled to emblements, which are the profits of the crop sowed by him during life, whether the plants are annual or perennial.
If the tenant for life rents the land by the year and the life estate is terminated during the year by his death or otherwise, the lessee, upon complying with his contract with the tenant for life, shall be entitled to the land for the balance of the year.
No forfeiture shall result when a tenant for life purports to sell the entire estate in lands. In such a case, the purchaser shall acquire only the interest of the life tenant.
Upon the demand of anyone interested in the remainder or his agent or attorney, which demand shall be accompanied by a statement under oath of his interest, it shall be the duty of the officer making the sale of a life estate in personalty under process of law to require the purchaser to give bond in double the value of the property, with good security, for the delivery of the property to the remainderman. The bond shall be filed in the office of the clerk of the superior court of the county in which the sale is made and shall be subject to an action on the bond by any person who is interested in the remainder. On the failure of the purchaser to give such bond, the property shall be resold at his risk, provided that notice of the demand for such bond was given before he made the purchase.
The tenant for life in personalty shall not remove such personalty outside this state without the consent of the remainderman. If the tenant for life fraudulently attempts to remove the personalty, he shall forfeit his interest therein; if he attempts to do so without fraud, the remainderman or reversioner shall be entitled to the writ of ne exeat to restrain him.
(a) The judge of the superior court shall have jurisdiction to hear any case that:
(1) Involves a tenant for life in real property or the proceeds of real property;
(2) Involves a contingent remainder interest of a class subject to open through the subsequent event of a birth or an adoption; and
(3) Does not involve the creation of a perpetuity.
(b) In such cases, the judge may receive evidence on the likelihood of the expansion of the class of such remaindermen through the subsequent event of the birth or the adoption of another member of such class. The judge shall be authorized to make such findings of fact and law as to declare such class to be closed. Upon such findings, the judge shall require the life tenant to give bond in an amount sufficient to protect against any actual subsequent expansion of such class by the life tenant through birth or adoption. An order of the judge in such case shall contain a determination of the free marketability of any concerned property.
(c) An action on the bond provided for in subsection (b) of this Code section shall be the sole recourse of any person who is interested in the remainder.
(a) An estate for years is one which is limited in its duration to a period which is fixed or which may be made fixed and certain. Such an estate may be for any number of years, provided the limitation is within the rule against perpetuities.
(b) An estate for years in lands passes as realty.
As applied to personalty, an estate for years differs from a contract of hiring, which is a bailment conveying no interest in the property to the bailee but merely the right of use. As applied to realty, an estate for years does not involve the relationship of landlord and tenant, in which relationship the tenant has no estate but merely has a right of use which is very similar to the right of a hirer of personalty.
The grant by one person to another of an estate for years out of his own estate, with reversion to himself, is usually termed a lease. Such a lease may be confined to a particular interest in lands, such as the right to mine or farm the same, in which case no other interest shall pass. If no subject of the lease is stated, the right to mine the land in question shall not pass unless the circumstances justify the implication that the parties intended the mining interest to pass.
An estate for years carries with it the right to use the property in as absolute a manner as may be done with a greater estate, provided that the property or the person who is entitled to the remainder or reversion interest is not injured by such use. The acts of omission and commission prescribed as grounds of forfeiture of an estate for life shall operate to the same effect as against a tenant for years.
A tenant for years is not entitled to emblements unless, before the end of the period which had been fixed for the termination of the estate for years, the happening of some contingency as provided in the creation of the estate terminates the estate without fault on the part of the tenant.
A tenant for years is liable for all repairs or other expenses which are necessary for the preservation and protection of the property.
In light of the entire instrument, the dependence or independence of covenants or conditions must be determined from the intention of the parties. If the conditions are dependent, the failure of the person first required to act shall be an excuse to the other party for failing to comply; if the conditions are independent, no such excuse shall avail. The law favors conditions to be independent.
Unless otherwise specifically provided by statute and unless the document or instrument provides otherwise, a tenancy in common is created wherever from any cause two or more persons are entitled to the simultaneous possession of any property. Tenants in common may have unequal shares, but they will be held to be equal unless the contrary appears. The fact of inequality shall not give the person holding the greater interest any privileges as to possession which are superior to those of the person owning a lesser interest so long as the tenancy continues.
(a) Every tenant in common shall have the right to possess the joint property. As long as a tenant in common occupies no greater portion of the joint property than his own share would be on partition and does not withdraw from the joint property any of its essential value, such as mineral deposits, he shall not be liable to account for rent to his cotenant.
(b) A tenant in common shall be liable to account to his cotenant if he:
(1) Receives any rent or other profit from the joint property;
(2) Commits any waste;
(3) Deprives his cotenant of the use of his fair proportion of the joint property;
(4) Appropriates the joint property to his exclusive use; or
(5) Uses the joint property in a manner which must necessarily be exclusive.
If one tenant in common receives more than his share of the rents and profits, he shall be liable therefor as the agent or bailee of the other cotenant. The claim for such indebtedness shall be superior to liens held by third persons which have been placed on the interest of the cotenant by the tenant in possession who received the unequal share of the rents and profits.
There 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. In such event, the cotenant may bring an action to recover possession.
Equity has jurisdiction in cases of partition whenever the remedy at law is insufficient or peculiar circumstances render the proceeding in equity more suitable and just.
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.
The decree on a proceeding for equitable partition shall pass the title without the execution of any conveyances by the parties.
When two or more persons are common owners of lands and tenements, whether by descent, purchase, or otherwise, and no provision is made, by will or otherwise, as to how such lands and tenements shall be divided, any one of such common owners may apply by petition to the superior court of the county in which such lands and tenements are located for a writ of partition which shall set forth plainly and distinctly the facts and circumstances of the case, shall describe the premises to be partitioned, and shall define the share and interest of each of the parties therein. When the lands in question constitute a single tract situated in more than one county, the application may be made to the superior court of any of such counties.
If the party desiring the writ of partition is of full age and free from disability, he or she may make the application either in person or by his or her agent or attorney in fact or at law. An application may be made for the benefit of a minor, a mentally ill or intellectually disabled person, or the beneficiary of a trust by the guardian of such minor, the guardian of such mentally ill or intellectually disabled person, or the trustee of such beneficiary, as the case may be.
The party applying for the writ of partition shall give the other parties concerned at least 20 days' notice of his or her intention to make the application. If any of the other parties is a minor, a mentally ill or intellectually disabled person, or a beneficiary of a trust, the 20 days' notice shall be served on the guardian of such minor, the guardian of such mentally ill or intellectually disabled person, or the trustee of such beneficiary. If any of the parties reside outside of this state, the court may order service by publication as in its judgment is right in each case.
When the application for partition is made and when due proof is made that the notice required by Code Section 44-6-162 has been given, the court shall examine the petitioner's title and share of the premises to be partitioned and shall thereupon pass an order directing the clerk of the superior court to issue a writ of partition which shall be framed according to the nature of the case and directed to five freeholders of the county in which the lands are located who shall serve as partitioners; and the court shall execute and return the writ as provided in Code Section 44-6-164.
The partitioners shall have the power to select a surveyor to aid them in the discharge of their duties. After giving all the parties, if possible, at least eight days' notice of the time of executing the writ and after being sworn to execute the writ duly and impartially before an officer authorized by law to administer such oath, the partitioners or a majority of them shall proceed to make a just and equal partition and division of all the lands and tenements, either in entire tracts or in parcels, as they shall judge, according to the best of their skill, ability, and knowledge, to be in proportion to the shares claimed and to be most beneficial to the several common owners of the lands and tenements. They shall return the writ, with their actings and doings thereon and under their hands and seals, to the superior court within three months after its issuance, which return shall be filed and kept by the clerk until the next term of the court.
At the term of the court when the application is made or at the next term after the partitioners have made their return, any of the persons against whose right or title a judgment is sought may file objections to the right of the applicant and the writ of partition or to the return of the partitioners, as the case may be, and may, by way of defense, show any good and probable matter in bar of the partition asked for or show that the petitioner does not have title to as much as is allowed and awarded to him by the partitioners or to any part of the land; in such event, the issue shall be tried by a jury as in cases of appeals to the superior court.
If no objection to the return of the partitioners is filed by any of the parties or if, being filed, the jury on the trial finds a verdict against the party setting up such objections, the return of the partitioners shall be made the judgment of the court and shall be final and conclusive as to all the parties concerned who were notified of the application for partition and of the time of executing the writ as required by Code Sections 44-6-162 and 44-6-164, and a writ of possession shall issue accordingly. If objections to the return are filed and are sustained by the jury trying the case or if it appears to the court that there is injustice or inequality in the division made by the partitioners, the court shall award a new partition to be made in the presence of the parties concerned if they will appear, which second partition, when returned, shall be firm, good, and conclusive forever against all parties notified as provided in Code Sections 44-6-162 and 44-6-164.
(a) As used in this Code section, the term:
(1) “Party in interest” means any person, other than a petitioner, having an interest in property.
(2) “Petitioner” means any person petitioning for partition of property.
(3) “Property” means lands and tenements sought to be partitioned pursuant to this subpart.
(b) Whenever an application is made for the partition of property and any of the parties in interest convinces the court that a fair and equitable division of the property cannot be made by means of metes and bounds because of improvements made thereon, because the premises are valuable for mining purposes or for the erection of mills or other machinery, or because the value of the entire property will be depreciated by the partition applied for, the court shall proceed pursuant to this Code section.
(c) The court shall appoint three qualified persons to make appraisals of the property. The average of the three appraisals shall constitute the appraised price of the property for purposes of this Code section. Notice of the amount of the appraised price shall be served on the petitioners and all parties in interest within five days after the appraised price is established.
(d) Within 15 days after the appraised price is established, upon request to the court and grant thereof, any petitioner may withdraw as petitioner in the partition action and become a party in interest and any party in interest may become a petitioner in the action. Any petitioner remaining as such after the fifteenth day may be paid, pursuant to this Code section, his respective share of the appraised price corresponding to his respective share of the property. This payment shall constitute complete satisfaction of all of that petitioner's claims to and interest in that property. If no petitioner remains in the partition action after that fifteenth day, the proceeding shall be dismissed, and the petitioners who have withdrawn shall be liable for the costs of the action, including but not limited to the appraisal costs.
(e)(1) No sooner than 16 days and no later than 90 days after the appraised price is established, the parties in interest shall tender to the court sufficient sums to pay to petitioners their shares of the appraised price, as determined by their respective shares in the property, or the property shall be subject to public sale pursuant to Code Section 44-6-167. If the property is subject to such public sale, the petitioner and the parties in interest shall be liable for appraisal costs under this Code section in proportion to their respective interests in the property.
(2) Each party in interest may pay toward the amount required to purchase any petitioners' shares of the appraised price an amount in proportion to that party's share of the total shares of property of all parties in interest, unless one party in interest authorizes another party in interest to pay some or all of his proportionate share of the shares available for sale. The share of each party in interest in the property shall be increased by the share that party pays toward the purchase of petitioners' shares in the property.
(f) Within 95 days after the appraised price is established, unless the property becomes subject to public sale pursuant to paragraph (1) of subsection (e) of this Code section, the petitioners shall execute title to the parties in interest for the property in return for payment to the petitioners, from sums tendered to court under subsection (e) of this Code section, of their respective shares of the appraised price. Petitioners and parties in interest shall be liable for costs of the sale and proceedings relating thereto under this Code section in proportion to their respective shares in the property prior to that sale.
In the event lands and tenements sought to be partitioned are not sold pursuant to Code Section 44-6-166.1, the court shall order a public sale of such lands and tenements. The court shall appoint three discreet persons as commissioners to conduct such sale under such regulations and upon such just and equitable terms as it may prescribe. The sale shall take place on the first Tuesday in the month, shall be at the place of public sales in the county in which the land is located, and shall be advertised in some public newspaper once a week for four weeks. This Code section shall not be construed to change the place of sale in those counties where by law sheriffs' sales are required to take place at the courthouse.
After the sale of any lands and tenements provided for in Code Section 44-6-167, the commissioners conducting the sale shall return their proceeds to the same term of the court ordering such sale if such term is still being held, and, if not, to the next term thereof, at which term the court shall order the proceeds of the sale to be divided among the several claimants in proportion to their respective interests after deducting the expenses of the proceedings. The commissioners shall be liable to rule by the superior court as sheriffs are liable for all moneys which they have or may receive for the lands sold by them and which they are required by law to return to the court for distribution; and, in case they shall fail to pay the money into court in obedience to a rule against them, they shall be immediately attached as for a contempt and imprisoned without bail until such payment is made.
Upon the sale of lands and tenements as provided for in Code Section 44-6-167, the parties in interest shall execute a title to the purchaser; and, if any of them shall fail or refuse to do so, the commissioners or any two of them shall execute a deed of conveyance to such lands and tenements to the purchaser at such sale, which deed shall be as valid and binding as if made by the parties themselves.
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; and the court may deny a sale or partition altogether if it is manifest that the interest of each party will not be fully protected.
When proceedings have been instituted and judgment of the partition has been rendered according to the regulations prescribed in this part and if any one of the parties in interest is a minor or a mentally ill or intellectually disabled person who has no guardian, or is absent from the state during such proceeding, or has not been notified thereof, such minor or mentally ill or intellectually disabled person may, within 12 months after coming of age, after restoration of mind, or after having a guardian appointed, as the case may be, and such absent or unnotified party may, at any time within 12 months after rendition of the judgment, move the court to set aside the judgment on any of the grounds upon which a party notified and free from disabilities might have resisted the judgment upon the hearing as authorized by Code Section 44-6-165. The issue shall be tried and the subsequent proceedings shall be the same as is provided for in cases of objections filed to the return of the partitioners before judgment. If such motion to set aside the judgment is not made within the time specified in this Code section, such judgment shall be as binding and conclusive upon such minor, mentally ill or intellectually disabled person, or absent or unnotified party as if he or she had been notified, present, or free from disability. In no event shall such subsequent proceedings affect the title of a bona fide purchaser under a sale ordered by the court.
In all cases where an undivided interest in real estate has been or may be granted or devised to a person for his lifetime with remainder or reversion to others, such life tenant may compel a partition pursuant to the partition laws of this state which may, upon a proper judgment of the superior court based upon an application therefor, bind all parties interested whether in possession, reversion, or remainder and whether or not those entitled to take are in being, provided the property is capable of fair and equitable partition and such fact is adjudicated by the court in such proceeding. No sale of the property may be made or had under such application for partition, and the terms of the grant or devise shall otherwise remain in full force and effect.
(a) Under the partition proceeding provided in Code Section 44-6-172, the court shall appoint a guardian ad litem to act for and represent all unborn remaindermen or reversioners on such terms as may be ordered by the court. When interested minors are not represented by a guardian, the court shall also appoint a guardian ad litem to act for and represent such minors.
(b) The guardian ad litem shall be served with a notice of the application for partition. After the application has been filed in the superior court, all other parties shall also be served with notice of the application for partition. The guardian ad litem and all other parties who have been served with the notice shall answer and plead to the application for partition within 20 days after the service of the notice; provided, however, that the court may authorize the guardian ad litem to acknowledge service and waive the 20 days' notice.
The right of partition provided by Code Sections 44-6-172 and 44-6-173 shall be cumulative to existing laws.
As used in this subpart, the term:
(1) “Ascendant” means an individual who precedes another individual in lineage in a direct line of ascent from the other individual.
(2) “Broker” means any individual or entity issued a broker's real estate license by the Georgia Real Estate Commission pursuant to Chapter 40 of Title 43. Such term shall include the broker's affiliated licensees.
(3) “Collateral” means an individual who is related to another individual under the law of intestate succession of this state but who is not the other individual's ascendant or descendant.
(4) “Descendant” means an individual who follows another individual in lineage in a direct line of descent from the other individual.
(5) “Heirs property” means real property held in tenancy in common which satisfies all of the following requirements on the date of the filing of a partition action:
(A) There is no agreement in a record binding all the cotenants which governs the partition of the property;
(B) One or more of the cotenants acquired title from a relative, whether living or deceased; and
(C) Any of the following applies:
(i) Twenty percent or more of the interests are held by cotenants who are relatives;
(ii) Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or
(iii) Twenty percent or more of the cotenants are relatives.
(6) “Partition by sale” means a court ordered sale of the entire heirs property, whether by public sale, sealed bids, or open-market sale conducted under Code Section 44-6-187.
(7) “Partition in kind” means the division of heirs property into physically distinct and separately titled parcels.
(8) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(9) “Relative” means an ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage, adoption, or law of this state other than this subpart.
(a) This subpart shall apply to partition actions filed on or after January 1, 2013.
(b) In an action to partition real property under Subpart 1 or 2 of this part, the court shall determine whether the property is heirs property. If the court determines that the property is heirs property, the property shall be partitioned pursuant to this subpart unless all of the cotenants otherwise agree in a record.
If an order for service by publication of the summons for a writ of partition is granted and the court determines that the property may be heirs property, the plaintiff, not later than ten days after the court's determination that the property may be heirs property, shall post a sign in the right of way adjacent to the property which is the subject of the writ of partition, and the plaintiff shall maintain such sign while the action is pending. The sign shall state that a writ of partition has commenced, the name and address of the court in which the action is pending, and the common designation by which the property is known. The court may require the plaintiff to publish the name of the plaintiff and names of the known defendants on the sign.
If the court appoints partitioners as described in Code Section 44-6-163, each partitioner shall be a discreet person, disinterested, impartial, and not a party to or a participant in the writ of partition.
(a) Except as otherwise provided in subsections (b) and (c) of this Code section, if the court determines that the property that is the subject of a partition action is heirs property, the court shall determine the fair market value of the property by ordering an appraisal pursuant to subsection (d) of this Code section.
(b) If all cotenants have agreed to the value of the property or to another method of valuation, the court shall adopt that value or the value produced by the agreed method of valuation.
(c) If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.
(d) If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in this state to determine the fair market value of the property assuming sole ownership of the fee simple estate. Upon completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court.
(e) If an appraisal is conducted pursuant to subsection (d) of this Code section, not later than ten days after the appraisal is filed, the court shall send notice to each party with a known address, stating:
(1) The appraised fair market value of the property;
(2) That the appraisal is available at the clerk's office; and
(3) That a party may file with the court an objection to the appraisal not later than 30 days after the notice is sent, stating the grounds for the objection.
(f) If an appraisal is filed with the court pursuant to subsection (d) of this Code section, the court shall conduct a hearing to determine the fair market value of the property not sooner than 30 days after a copy of the notice of the appraisal is sent to each party under subsection (e) of this Code section, whether or not an objection to the appraisal is filed under paragraph (3) of subsection (e) of this Code section. In addition to the court ordered appraisal, the court may consider any other evidence of value offered by a party.
(g) After a hearing under subsection (f) of this Code section, but before considering the merits of the partition action, the court shall determine the fair market value of the property and send notice to the parties of the value.
(a) If any cotenant requests partition by sale, after the court determines the fair market value of the heirs property under Code Section 44-6-184 or accepts the evaluation of the property agreed to by all cotenants, the court shall send notice to the parties that any cotenant except a cotenant that requested partition by sale may buy all the interests of the cotenants that requested partition by sale.
(b) Not later than 45 days after the notice is sent under subsection (a) of this Code section, any cotenant except a cotenant that requested partition by sale may give notice to the court that it elects to buy all the interests of the cotenants that requested partition by sale.
(c) The purchase price for each of the interests of a cotenant that requested partition by sale shall be the value of the entire parcel determined pursuant to Code Section 44-6-184 multiplied by the cotenant's fractional ownership of the entire parcel.
(d) After expiration of the period in subsection (b) of this Code section:
(1) If only one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall notify all the parties of that fact;
(2) If more than one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall allocate the right to buy those interests among the electing cotenants based on each electing cotenant's existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid by each electing cotenant; or
(3) If no cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall send notice to all the parties of that fact and resolve the partition action under subsections (a) and (b) of Code Section 44-6-186.
(e) If the court sends notice to the parties under paragraph (1) or (2) of subsection (d) of this Code section, the court shall set a date, not sooner than 60 days after the date the notice was sent, by which electing cotenants shall pay their apportioned price into the court. After this date:
(1) If all electing cotenants timely pay their apportioned price into court, the court shall issue an order reallocating all the interests of the cotenants and disburse the amounts held by the court to the persons entitled to them;
(2) If no electing cotenant timely pays its apportioned price, the court shall resolve the partition action under subsections (a) and (b) of Code Section 44-6-186 as if the interests of the cotenants that requested partition by sale were not purchased; or
(3) If one or more but not all of the electing cotenants fail to pay their apportioned price on time, the court shall give notice to the electing cotenants that paid their apportioned price of the interest remaining and the price for all that interest.
(f) Not later than 20 days after the court gives notice pursuant to paragraph (3) of subsection (e) of this Code section, any cotenant that paid their apportioned price of the interest may elect to purchase all of the remaining interest by paying the entire price into the court. After the 20 day period:
(1) If only one cotenant pays the entire price for the remaining interest, the court shall issue an order reallocating the remaining interest to that cotenant. The court shall issue promptly an order reallocating the interests of all of the cotenants and disburse the amounts held by it to the persons entitled to them;
(2) If no cotenant pays the entire price for the remaining interest, the court shall resolve the partition action under subsections (a) and (b) of Code Section 44-6-186 as if the interests of the cotenants that requested partition by sale were not purchased; or
(3) If more than one cotenant pays the entire price for the remaining interest, the court shall reapportion the remaining interest among those paying cotenants, based on each paying cotenant's original fractional ownership of the entire parcel divided by the total original fractional ownership of all cotenants that paid the entire price for the remaining interest. The court shall issue promptly an order reallocating all of the cotenants' interests, disburse the amounts held by it to the persons entitled to them, and promptly refund any excess payment held by the court.
(g) Not later than 45 days after the court sends notice to the parties pursuant to subsection (a) of this Code section, any cotenant entitled to buy an interest under this Code section may request the court to authorize the sale as part of the pending action of the interests of cotenants named as defendants and served with the writ or application for partition but that did not appear in the action.
(h) If the court receives a timely request under subsection (g) of this Code section, the court, after hearing, may deny the request or authorize the requested additional sale on such terms as the court determines are fair and reasonable, subject to the following limitations:
(1) A sale authorized under this subsection may occur only after the purchase prices for all interests subject to sale under subsections (a) through (f) of this Code section have been paid into court and those interests have been reallocated among the cotenants as provided in those subsections; and
(2) The purchase price for the interest of a nonappearing cotenant shall be based on the court's determination of the fair market value of the heirs property under Code Section 44-6-184 or the evaluation of the property agreed to by all cotenants.
(a)(1) If all the interests of all cotenants that requested partition by sale are not purchased by other cotenants pursuant to Code Section 44-6-185, or if after conclusion of the buyout under Code Section 44-6-185, a cotenant remains that has requested partition in kind, the court shall order partition in kind unless the court, after consideration of the factors listed in Code Section 44-6-187, finds that partition in kind will result in manifest prejudice to the cotenants as a group. In considering whether to order partition in kind, the court shall approve a request by two or more parties to have their individual interests aggregated.
(2)(A) In determining under paragraph (1) of this subsection whether partition in kind would result in manifest prejudice to the cotenants as a group, the court shall consider the following:
(i) Whether the heirs property practicably can be divided among the cotenants;
(ii) Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court ordered sale likely would occur;
(iii) Evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other;
(iv) A cotenant's sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant;
(v) The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property;
(vi) The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property; and
(vii) Any other relevant factor.
(B) The court shall not consider any one factor listed in subparagraph (A) of this paragraph to be dispositive without weighing the totality of all relevant factors and circumstances.
(b) If the court does not order partition in kind under subsection (a) of this Code section, the court shall order partition by sale pursuant to Code Section 44-6-187 or, if no cotenant requested partition by sale, the court shall dismiss the action.
(c) If the court orders partition in kind pursuant to subsection (a) of this Code section, the court may require that one or more cotenants pay one or more other cotenants amounts so that the payments, taken together with the value of the in-kind distributions to the cotenants, will make the partition in kind just and proportionate in value to the fractional interests held.
(d) If the court orders partition in kind, the court shall allocate to the cotenants that are unknown, unlocatable, or the subject of a default judgment, if their interests were not bought out pursuant to Code Section 44-6-185, a part of the property representing the combined interests of these cotenants as determined by the court, and this portion of the property shall remain undivided.
(a) If the court orders an open-market sale of heirs property, the sale shall be an open-market sale unless the court finds that a sale by sealed bids or a public sale would be more economically advantageous and in the best interest of the cotenants as a group.
(b) If the court orders an open-market sale and the parties, not later than ten days after the entry of the order, agree on a broker to offer the property for sale, the court shall appoint the broker and establish a reasonable commission. If the parties cannot agree on a broker, the court shall appoint a disinterested broker to offer the property for sale and shall establish a reasonable commission. The broker shall offer the property for sale in a commercially reasonable manner at a price no lower than the fair market value determined by the court under Code Section 44-6-184 or the valuation of the property agreed upon by the cotenants and on the terms and conditions established by the court.
(c) If the broker appointed under subsection (b) of this Code section obtains within a reasonable time an offer to purchase the property for at least the fair market value determined by the court under Code Section 44-6-184 or the valuation of the property agreed upon by the cotenants:
(1) The broker shall comply with the reporting requirements in Code Section 44-6-188; and
(2) The sale may be completed in accordance with state law other than this subpart.
(d) If the broker appointed under subsection (b) of this Code section cannot obtain within a reasonable time an offer to purchase the property for at least the fair market value determined by the court under Code Section 44-6-184 or the valuation of the property agreed upon by the cotenants, the court, after hearing, shall:
(1) Approve the highest outstanding offer, if any;
(2) Redetermine the value of the property and order that the property continue to be offered for an additional time; or
(3) Order that the property be sold by sealed bids or at a public sale.
(e) If the court orders a sale by sealed bids or a public sale, the court shall set terms and conditions of the sale. If the court orders a public sale, the public sale shall be conducted as a public sale in accordance with Code section 44-6-167.
(f) If a purchaser is entitled to a share of the proceeds of the sale, the purchaser shall be entitled to a credit against the price in an amount equal to the purchaser's share of the proceeds.
(a) A broker appointed under subsection (b) of Code Section 44-6-187 to offer heirs property for open-market sale shall file a report with the court not later than seven days after receiving an offer to purchase the property for at least the value determined under Code Section 44-6-184 or 44-6-187.
(b) The report required by subsection (a) of this Code section shall contain the following information:
(1) A description of the property to be sold to each buyer;
(2) The name of each buyer;
(3) The proposed purchase price;
(4) The terms and conditions of the proposed sale, including the terms of any owner financing;
(5) The amounts to be paid to lienholders;
(6) A statement of contractual or other arrangements or conditions of the broker's commission; and
(7) Other material facts relevant to the sale.
In applying and construing this subpart, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact the “Uniform Partition of Heirs Property Act.”
This subpart modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).
(a)(1) Deeds and other instruments of title, including any instrument in which one person conveys to himself or herself and one or more other persons, any instrument in which two or more persons convey to themselves or to themselves and another or others, and wills, taking effect after January 1, 1977, may create a joint interest with survivorship in two or more persons.
(2) Any instrument of title in favor of two or more persons shall be construed to create interests in common without survivorship between or among the owners unless the instrument expressly refers to the takers as “joint tenants,” “joint tenants and not as tenants in common,” or “joint tenants with survivorship” or as taking “jointly with survivorship.”
(3) Any instrument of title using one of the forms of expression referred to in paragraph (2) of this subsection or language essentially the same as one of these forms of expression shall create a joint tenancy estate or interest that may be severed as to the interest of any owner by the recording of an instrument which results in his or her lifetime transfer of all or a part of his or her interest; provided, however, that, if all persons owning joint tenant interests in a property join in the same recorded lifetime transfer, no severance shall occur.
(4) Unless the joint tenancy with the right of survivorship is otherwise disposed of in a final order of divorce or annulment, if either party to an instrument of title creating a joint tenancy with the right of survivorship files an affidavit in the real property records maintained by the clerk of superior court of the county in which the real property is located averring that the parties have been lawfully divorced or their marriage has been annulled that the party intends to terminate the joint tenancy, identifies the book and page of recordation of the deed creating the joint tenancy and attaches a copy of the final order of divorce or annulment and a legal description of the property, the party's interests shall be converted into tenants in common.
(b) Neither this Code section nor Code Section 44-6-120 shall:
(1) Be construed to repeal, modify, or limit in any way:
(A) Code Section 14-5-8; or
(B) Article 8 of Chapter 1 of Title 7 or any other law relative to multiple-party accounts in financial institutions; or
(2) Apply to any document, transaction, or right to which Code Section 14-5-8 applies or to multiple-party deposit accounts in any financial institution.
This article shall be known and may be cited as the “Uniform Statutory Rule Against Perpetuities.”
(a) A nonvested property interest is invalid unless:
(1) When the interest is created, it is certain either to vest or to terminate within the lifetime of an individual then alive or within 21 years after the death of that individual; or
(2) The interest either vests or terminates within 360 years after its creation.
(b) A general power of appointment not presently exercisable because of a condition precedent is invalid unless:
(1) When the power is created, the condition precedent is certain either to be satisfied or to become impossible to satisfy within the lifetime of an individual then alive or within 21 years after the death of that individual; or
(2) The condition precedent either is satisfied or becomes impossible to satisfy within 360 years after its creation.
(c) A nongeneral power of appointment or a general testamentary power of appointment is invalid unless:
(1) When the power is created, it is certain to be irrevocably exercised or otherwise to terminate within the lifetime of an individual then alive or within 21 years after the death of that individual; or
(2) The power is irrevocably exercised or otherwise terminates within 360 years after its creation.
(d) In determining whether a nonvested property interest or a power of appointment is valid under paragraph (1) of subsection (a), paragraph (1) of subsection (b), or paragraph (1) of subsection (c) of this Code section, the possibility that a child will be born to an individual after the individual's death is disregarded.
(a) Except as provided in subsections (b) and (c) of this Code section and in subsection (a) of Code Section 44-6-205, the time of creation of a nonvested property interest or a power of appointment is determined under general principles of property law.
(b) For purposes of this article, if there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial owner of:
(1) A nonvested property interest; or
(2) A property interest subject to a power of appointment described in subsection (b) or (c) of Code Section 44-6-201,
the nonvested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates.
(c) For purposes of this article, a nonvested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other existing property arrangement is created when the nonvested property interest or power of appointment in the original contribution was created.
Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the number of years allowed by paragraph (2) of subsection (a), (b), or (c) of Code Section 44-6-201 if:
(1) A nonvested property interest or a power of appointment becomes invalid under Code Section 44-6-201;
(2) A class gift is not but might still become invalid under Code Section 44-6-201 and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or
(3) A nonvested property interest that is not validated by paragraph (1) of subsection (a) of Code Section 44-6-201 can vest, but not within 360 years after its creation.
Code Section 44-6-201 shall not apply to:
(1) A nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of:
(A) A premarital or postmarital agreement;
(B) A separation or divorce settlement;
(C) A spouse's election;
(D) A similar arrangement arising out of a prospective, existing, or previous marital relationship between the parties;
(E) A contract to make or not to revoke a will or trust;
(F) A contract to exercise or not to exercise a power of appointment;
(G) A transfer in satisfaction of a duty of support; or
(H) A reciprocal transfer;
(2) A fiduciary's power relating to the administration or management of assets, including the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to determine principal and income;
(3) A power to appoint a fiduciary;
(4) A discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal. Nothing contained in paragraphs (2) and (3) of this Code section and this paragraph shall be construed to permit the fiduciary to continue the administration or management of assets once the nonvested property interest becomes invalid as described in subsection (a) of Code Section 44-6-201;
(5) A nonvested property interest held by a charity, government, or governmental agency or subdivision, if the nonvested property interest is preceded by an interest held by another charity, government, or governmental agency or subdivision;
(6) A nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income, or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse; or
(7) A property interest, power of appointment, or arrangement that was not subject to the common-law rule against perpetuities or is excluded by another statute of this state.
(a) Except as extended by subsection (b) of this Code section, this article applies to a nonvested property interest or a power of appointment that is created on or after July 1, 2018. For purposes of this Code section only, a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable.
(b) With respect to a nonvested property interest or a power of appointment that was created before July 1, 2018, and that violates this state's rule against perpetuities as that rule existed before July 1, 2018, a court upon the petition of an interested party may exercise its equitable power to reform the disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created.
This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it.
(a) The relationship of landlord and tenant is created when the owner of real estate grants to another person, who accepts such grant, the right simply to possess and enjoy the use of such real estate either for a fixed time or at the will of the grantor. In such a case, no estate passes out of the landlord and the tenant has only a usufruct which may not be conveyed except by the landlord's consent and which is not subject to levy and sale.
(b) All renting or leasing of real estate for a period of time less than five years shall be held to convey only the right to possess and enjoy such real estate, to pass no estate out of the landlord, and to give only the usufruct unless the contrary is agreed upon by the parties to the contract and is so stated in the contract.
(a) Contracts creating the relationship of landlord and tenant for any time not exceeding one year may be by parol.
(b) In any contract, lease, license agreement, or similar agreement, oral or written, for the use or rental of real property as a dwelling place, a landlord or a tenant may not waive, assign, transfer, or otherwise avoid any of the rights, duties, or remedies contained in the following provisions of law:
(1) Code Section 44-7-13, relating to the duties of a landlord as to repairs and improvements;
(2) Code Section 44-7-14, relating to the liability of a landlord for failure to repair;
(3) Ordinances adopted pursuant to Code Section 36-61-11;
(4) Article 3 of this chapter, relating to proceedings against tenants holding over;
(5) Article 4 of this chapter, relating to distress warrants;
(6) Article 2 of this chapter, relating to security deposits; and
(7) Any applicable provision of Chapter 11 of Title 9 which has not been superseded by this chapter.
(c) A provision for the payment by the tenant of the attorney's fees of the landlord upon the breach of a rental agreement by the tenant, which provision is contained in a contract, lease, license agreement, or similar agreement, oral or written, for the use or rental of real property as a dwelling place shall be void unless the provision also provides for the payment by the landlord of the attorney's fees of the tenant upon the breach of the rental agreement by the landlord.
(a) At or before the commencement of a tenancy, the landlord or an agent or other person authorized to enter into a rental agreement on behalf of the landlord shall disclose to the tenant in writing the names and addresses of the following persons:
(1) The owner of record of the premises or a person authorized to act for and on behalf of the owner for the purposes of serving of process and receiving and receipting for demands and notice; and
(2) The person authorized to manage the premises.
In the event of a change in any of the names and addresses required to be contained in such statement, the landlord shall advise each tenant of the change within 30 days after the change either in writing or by posting a notice of the change in a conspicuous place.
(b) A person who enters into a rental agreement on behalf of an owner or a landlord or both and who fails to comply with the disclosure requirements in paragraphs (1) and (2) of subsection (a) of this Code section becomes an agent of the owner or the landlord or both for serving of process and receiving and receipting for notices and demands; for performing the obligations of the landlord under this chapter; and for expending or making available, for the purpose of fulfilling such obligations, all rent collected from the premises.
(a) Municipalities and counties may establish by local ordinance minimum security standards not in conflict with applicable fire codes to prevent the unauthorized entry of premises occupied by a tenant as a dwelling place and may require landlords to comply with such standards.
(b) This Code section shall be cumulative to and shall not prohibit the enactment of other general and local laws, rules and regulations of state or local agencies, and local ordinances on this subject.
When, in an action for rent, title is shown in the plaintiff and occupation by the defendant is proved, an obligation to pay rent is generally implied. However, if the entry of the defendant on the premises was not under the plaintiff or if the possession of the defendant is adverse to the plaintiff, no such implication arises.
Where no time is specified for the termination of a tenancy, the law construes it to be a tenancy at will.
Sixty days' notice from the landlord or 30 days' notice from the tenant is necessary to terminate a tenancy at will.
The tenant at will is entitled to his emblements if the crop is sowed or planted before the landlord gives him notice of termination of the tenancy, if the tenancy is terminated by the judicial sale of the estate by the landlord or by death of the landlord or tenant, or if for any other cause the tenancy is suddenly terminated.
The tenant may not dispute his landlord's title or attorn to another claimant while he is in actual physical occupation, while he is performing any active or passive act or taking any position whereby he expressly or impliedly recognizes his landlord's title, or while he is taking any position that is inconsistent with the position that the landlord's title is defective.
The tenant shall deliver possession to the landlord at the expiration of his term; and, if he fails or refuses to do so, a summary remedy pursuant to Article 3 of this chapter is given to the landlord.
The tenant has no rights beyond the use of the land and tenements rented to him and such privileges as are necessary for the enjoyment of his use. He may not cut or destroy growing trees, remove permanent fixtures, or otherwise injure the property. He may use dead or fallen timber for firewood and the pasturage for his cattle.
During the term of his tenancy or any continuation thereof or while he is in possession under the landlord, a tenant may remove trade fixtures erected by him. After the term and his possession are ended, any trade fixtures remaining will be regarded as abandoned for the use of the landlord and will become the landlord's property.
The landlord must keep the premises in repair. He shall be liable for all substantial improvements placed upon the premises by his consent.
Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.
(a) As used in this Code section, the term “utilities” means heat, light, and water service.
(b) It shall be unlawful for any landlord knowingly and willfully to suspend the furnishing of utilities to a tenant until after the final disposition of any dispossessory proceeding by the landlord against such tenant.
(c) Any person who violates subsection (b) of this Code section shall, upon conviction, be assessed a fine not to exceed $500.00.
The destruction of a tenement by fire or the loss of possession by any casualty not caused by the landlord or from a defect of his title shall not abate the rent contracted to be paid.
All contracts for rent shall bear interest from the time the rent is due.
When it is agreed that the tenant shall pay to the landlord as rent a part of the crop produced on the lands rented from the landlord and the tenant, in good faith, delivers the part of the crop agreed on in discharge of his rent, such part of the crop so delivered shall be discharged from the lien of any judgment, decree, or other process whatsoever against the tenant.
(a) As used in this Code section, the term:
(1) “Assignation” means the making of any appointment or engagement for prostitution or any act in furtherance of such appointment or engagement.
(2) “Prostitution” means the offering or giving of the body for sexual intercourse, sex perversion, obscenity, or lewdness for hire.
(3) “Tourist camp” means any temporary or permanent buildings, tents, cabins or structures, or trailers or other vehicles which are maintained, offered, or used for dwelling or sleeping quarters for pay.
(b) All leases and agreements letting, subletting, or renting any house, place, building, tourist camp, or other structure for the purpose of prostitution or assignation shall be void.
No county or municipal corporation may enact, maintain, or enforce any ordinance or resolution which would regulate in any way the amount of rent to be charged for privately owned, single-family or multiple-unit residential rental property. This Code section shall not be construed as prohibiting any county or municipal corporation, or any authority created by a county or municipal corporation for that purpose, from regulating in any way property belonging to such county, such municipal corporation, or such authority from entering into any agreements with private persons, which agreements regulate the amount of rent to be charged for such rental properties.
When the owner of real property, either directly or through an agent, seeks to lease or rent that property for residential occupancy, prior to entering a written agreement for the leasehold of that property, the owner shall, either directly or through an agent, notify the prospective tenant in writing of the property's propensity of flooding if flooding has damaged any portion of the living space covered by the lease or attachments thereto to which the tenant or the tenant's resident relative has sole and exclusive use under the written agreement at least three times during the five-year period immediately preceding the date of the lease. An owner failing to give such notice shall be liable in tort to the tenant and the tenant's family residing on the leased premises for damages to the personal property of the lessee or a resident relative of the lessee which is proximately caused by flooding which occurs during the term of the lease. For purposes of this Code section, flooding is defined as the inundation of a portion of the living space covered by the lease which was caused by an increased water level in an established water source such as a river, stream, or drainage ditch or as a ponding of water at or near the point where heavy or excessive rain fell. This Code section shall apply only to leaseholds entered into on or after July 1, 1995.
(a) Where a landlord or tenant has entered into a written brokerage commission agreement for the payment of compensation or promise of payment to a real estate broker in consideration of brokerage services rendered in connection with the consummation of a lease, then, notwithstanding any rule or construction of law under which such written brokerage commission agreement might otherwise be considered the personal obligation of the original landlord or tenant specifically named in the lease, such written brokerage commission agreement shall, pursuant to the terms of this Code section, constitute a binding contractual obligation of such landlord or tenant, as the case may be, and of their respective grantees, successors, and assigns. Upon any sale, transfer, assignment, or other disposition, including, without limitation, by reason of the enforcement of any mortgage, lien, deed to secure debt, or other security instrument, of a landlord's interest in real property or upon any sale, assignment, transfer, or other disposition of a tenant's leasehold interest, the succeeding party shall be bound for all obligations occurring after the sale, transfer, assignment, or other disposition with the same effect as if such succeeding party had expressly assumed the landlord's or tenant's obligations relating to the written brokerage commission agreement if:
(1) A written brokerage commission agreement is incorporated into the lease;
(2) The real estate broker has complied with subsection (b) of this Code section;
(3) The succeeding party assumes the benefits of the tenancy, rental amount, and term of the lease; and
(4) The written brokerage commission agreement has not been waived in writing by the broker.
The conveyance or transfer of the real property coupled with the continuing assumption of the tenancy, rental amount, and term of said lease shall constitute conclusive evidence of the succeeding landlord's or tenant's agreement to pay such periodic commission payments under the written brokerage commission agreement.
(b) A real estate broker shall be entitled to the protections afforded by this Code section only upon the broker's recording a notice of commission rights in the deed records in the office of the clerk of the superior court in the county in which the real property or leasehold interest is located within 30 days of the execution of the lease incorporating the written brokerage commission agreement. Said notice of commission rights must be filed before conveyance of the real property, must be signed by the broker or by a person expressly authorized to sign on behalf of the broker, and must follow substantially the following form:
--“NOTICE OF COMMISSION RIGHTS--
The undersigned licensed Georgia real estate broker does hereby publish this NOTICE OF COMMISSION RIGHTS pursuant to Code Section 44-7-21 of the Official Code of Georgia Annotated to establish that the lease set forth below contains a written brokerage commission agreement providing for the payment or promise of payment of compensation for brokerage services.
| ___________________________________________________________________________________________________ | | | --- | --- | | Owner | | | ___________________________________________________________________________________________________ | | | Landlord | | | ___________________________________________________________________________________________________ | | | Tenant | | | ___________________________________________________________________________________________________ | | | Lease date | Lease term | | ___________________________________________________________________________________________________ | | | Project name or building | |
Legal Description: All that tract or parcel of land lying and being in the State of Georgia, County of _____ , being more particularly described on Exhibit ‘A’ attached hereto and made a part hereof. (A full and complete legal description is required for this form to be valid.)
Given under hand and seal this _____ day of _____, _____.
| Signed, sealed, and | | | | --- | --- | --- | | delivered in the | | | | presence of: | | Broker: | | __________________________________________ | | _____________________________ (Seal) | | Unofficial Witness | | Name: ____________________________________ | | __________________________________________ | | __________________________________________ | | Notary Public | | Georgia Real Estate | | (Notary Seal Attached) | | License No. ______________________” |
(c) The real estate broker must file a release of commission rights within 30 days of receipt of the final payment of commissions due under the written brokerage commission agreement.
(d) This Code section shall only apply to leaseholds of all or a portion of commercial real estate as that term is defined in Code Section 44-14-601 which are entered into on or after July 1, 1997.
(e) Notwithstanding any provision of this Code section to the contrary, this Code section does not create an interest in the real property which is the subject of the lease.
(a) As used in this Code section, the term “service member” means an active duty member of the regular or reserve component of the United States armed forces, the United States Coast Guard, the Georgia National Guard, or the Georgia Air National Guard on ordered federal duty for a period of 90 days or longer.
(b) Any service member may terminate his or her residential rental or lease agreement by providing the landlord with a written notice of termination to be effective on the date stated in the notice that is at least 30 days after the landlord's receipt of the notice if any of the following criteria are met:
(1) The service member is required, pursuant to a permanent change of station orders, to move 35 miles or more from the location of the rental premises;
(2) The service member is released from active duty or state active duty after having leased the rental premises while on active duty status and the rental premises is 35 miles or more from the service member's home of record prior to entering active duty;
(3) After entering into a rental agreement, the service member receives military orders requiring him or her to move into government quarters;
(4) After entering into a rental agreement, the service member becomes eligible to live in government quarters and the failure to move into government quarters will result in a forfeiture of the service member's basic allowance for housing;
(5) The service member receives temporary duty orders, temporary change of station orders, or state active duty orders to an area 35 miles or more from the location of the rental premises, provided such orders are for a period exceeding 60 days; or
(6) The service member has leased the property but prior to taking possession of the rental premises receives a change of orders to an area that is 35 miles or more from the location of the rental premises.
(c) The notice to the landlord pursuant to subsection (b) of this Code section shall be accompanied by either a copy of the official military orders or a written verification signed by the service member's commanding officer.
(d) In the event a service member dies during active duty, an adult member of his or her immediate family may terminate the service member's residential rental or lease agreement by providing the landlord with a written notice of termination to be effective on the date stated in the notice that is at least 30 days after the landlord's receipt of the notice. The notice to the landlord must be accompanied by either a copy of the official military orders showing the service member was on active duty or a written verification signed by the service member's commanding officer and a copy of the service member's death certificate.
(e) Upon termination of a rental agreement under this Code section, the service member is liable for the rent due under the rental agreement prorated to the effective date of the termination payable at such time as would have otherwise been required by the terms of the rental agreement. The service member is not liable for any other rent or damages due to the early termination of the tenancy as provided for in this Code section. Notwithstanding any provision of law to the contrary, if a service member terminates the rental agreement pursuant to this Code section 14 or more days prior to occupancy, no damages or penalties of any kind will be assessable.
(f) The provisions of this Code section shall apply to all residential rental or lease agreements entered into on or after July 1, 2005, and to any renewals, modifications, or extensions of such agreements in effect on such date. The provisions of this Code section may not be waived or modified by the agreement of the parties under any circumstances.
(a) As used in this Code section, the term:
(1) “Civil family violence order” means:
(A) Any protective order issued pursuant to Article 1 of Chapter 13 of Title 19, provided that the respondent was present or had notice of the hearing that resulted in the issuance of such order; or
(B) Any ex parte temporary protective order issued pursuant to Article 1 of Chapter 13 of Title 19, provided that such order is accompanied by a police report showing a basis for such order.
(2) “Civil stalking order” means:
(A) Any protective order issued pursuant to Code Section 16-5-94, provided that the respondent was present or had notice of the hearing that resulted in the issuance of such order; or
(B) Any ex parte temporary protective order issued pursuant to Code Section 16-5-94, provided that such order is accompanied by a police report showing a basis for such order.
(3) “Criminal family violence order” means:
(A) Any order of pretrial release issued as a result of an arrest for an act of family violence; or
(B) Any order for probation issued as a result of a conviction or plea of guilty, nolo contendere, or first offender to an act of family violence.
(4) “Criminal stalking order” means:
(A) Any order of pretrial release issued as a result of an arrest for an act of stalking under Article 7 of Chapter 5 of Title 16; or
(B) Any order for probation issued as a result of a conviction or plea of guilty, nolo contendere, or first offender to an act of stalking under Article 7 of Chapter 5 of Title 16.
(b) A tenant may terminate his or her residential rental or lease agreement for real estate effective 30 days after providing the landlord with a written notice of termination when a civil family violence order, civil stalking order, criminal family violence order, or criminal stalking order has been issued:
(1) Protecting such tenant or his or her minor child; or
(2) Protecting such tenant when he or she is a joint tenant, or his or her minor child, even when such protected tenant had no obligation to pay rent to the landlord.
(c) The notice to the landlord pursuant to subsection (b) of this Code section shall be accompanied by a copy of the applicable civil family violence order, civil stalking order, criminal family violence order, or criminal stalking order and a copy of the police report if such order was an ex parte temporary protective order.
(d) Upon termination of a residential rental or lease agreement under this Code section, the tenant may occupy the real estate until the termination is effective. Such tenant shall be liable for the rent due under such agreement prorated to the effective date of the termination, payable at such time as would have otherwise been required by the terms of such agreement, and for any delinquent or unpaid rent or other sums owed to the landlord prior to the termination of such agreement. The tenant shall not be liable for any other fees, rent, or damages due to the early termination of the tenancy as provided for in this Code section. Notwithstanding any provision of law to the contrary, if a tenant terminates a residential rental or lease agreement pursuant to this Code section 14 or more days prior to occupancy, no damages or penalties of any kind will be assessable.
(e) This Code section shall not be waived or modified by the agreement of the parties under any circumstances.
(a) A residential tenant establishes a prima-facie case of retaliation by demonstrating that he or she took an action under subsection (b) of this Code section relating to a life, health, safety, or habitability concern and by demonstrating that his or her landlord took an action under subsection (c) of this Code section.
(b) Elements of a prima-facie case under this Code section include that a tenant:
(1) In good faith exercised or attempted to exercise against a landlord a right or remedy granted to such tenant by contract or law;
(2) Gave a landlord a notice to repair or exercise a remedy under this chapter;
(3) Complained to a governmental entity responsible for enforcing building or housing codes or a public utility, and the tenant:
(A) Claims a building or housing code violation or utility problem that is the duty of the landlord to repair; and
(B) Acts in good faith in that a reasonable person would believe that the complaint is valid and that the violation or problem occurred; or
(4) Established, attempted to establish, or participated in a tenant organization to address problems related to the habitability of the property, such as life, health, or safety concerns.
(c) Elements of a prima-facie case under this Code section include that a landlord, within three months after the date that a tenant takes any action described under subsection (b) of this Code section:
(1) Filed a dispossessory action, except for the grounds set forth in paragraph (2) of subsection (d) of this Code section;
(2) Deprived the tenant of the use of the premises, except for reasons authorized by law;
(3) Decreased services to the tenant;
(4) Increased the tenant's rent or terminated the tenant's lease or rental agreement; or
(5) Materially interfered with the tenant's rights under the tenant's lease or rental agreement.
(d) A landlord shall not be liable for retaliation under this Code section:
(1) For increasing rent or reducing services:
(A) Under an escalation clause in a written lease for utilities, taxes, or insurance;
(B) As part of a pattern of rent increases or for reducing services as part of a pattern of service reductions, for an entire multiunit residential building or complex; or
(C) As part of a rent increase due to the terms of the tenant's or landlord's participation in a program regulated by this state or the federal government involving the receipt of federal funds, tenant assistance, or tax credits; or
(2) For a dispossessory action or lease or rental agreement termination in accordance with this chapter based upon one or more of the following circumstances:
(A) The tenant is delinquent in rent when the landlord gives notice to vacate or files a dispossessory action;
(B) The tenant, a member of the tenant's family, or a guest or invitee of the tenant intentionally damages property on the premises or by word or conduct threatens the personal safety of the landlord, the landlord's employees, or another tenant;
(C) The tenant has breached the lease, other than by holding over, by an action such as violating written lease provisions prohibiting serious misconduct or criminal acts;
(D) The tenant holds over after the tenant gives notice of termination or intent to vacate; or
(E) The tenant holds over after the landlord gives notice of termination at the end of the rental term as agreed upon in the written lease.
(e) In addition to any other remedies provided for by law, if a landlord retaliates against a tenant pursuant to this Code section, such retaliation shall be a defense to a dispossessory action, and the tenant may recover from the landlord a civil penalty of one month's rent plus $500.00, court costs, reasonable attorney's fees where the conduct is willful, wanton, or malicious, and declaratory relief less any delinquent rents or other sums for which the tenant is liable to the landlord.
(f) It shall be a rebuttable defense under this Code section that the property has been inspected within the prior 12 months pursuant to any federal, state, or local program which certifies that the property complies with applicable building and housing codes or that the property has been inspected within the prior 12 months by a code enforcement officer or a licensed building inspector who certifies that the property complies with applicable building and housing codes.
As used in this article, the term:
(1) “Nonrefundable fee” means any money or other consideration paid or given by a tenant to a landlord under the terms of a residential rental agreement which the parties agreed would not be refunded.
(2) “Residential rental agreement” means a contract, lease, or license agreement for the rental or use of real property as a dwelling place.
(3) “Security deposit” means money or any other form of security given after July 1, 1976, by a tenant to a landlord which shall be held by the landlord on behalf of a tenant by virtue of a residential rental agreement and shall include, but not be limited to, damage deposits, advance rent deposits, and pet deposits. Such term shall not include nonrefundable fees, or money or other consideration which are not to be returned to the tenant under the terms of the residential rental agreement or which were to be applied toward the payment of rent or reimbursement of services or utilities provided to the tenant.
Except as provided in Code Section 44-7-32, whenever a security deposit is held by a landlord or such landlord's agent on behalf of a tenant, such security deposit shall be deposited in an escrow account established only for that purpose in any bank or lending institution subject to regulation by this state or any agency of the United States government. The security deposit shall be held in trust for the tenant by the landlord or such landlord's agent except as provided in Code Section 44-7-34. Tenants shall be informed in writing of the location of the escrow account required by this Code section.
(a) As an alternative to the requirement that security deposits be placed in escrow as provided in Code Section 44-7-31, the landlord may post and maintain an effective surety bond with the clerk of the superior court in the county in which the dwelling unit is located. The amount of the bond shall be the total amount of the security deposits which the landlord holds on behalf of the tenants or $ 50,000.00, whichever is less. The bond shall be executed by the landlord as principal and a surety company authorized and licensed to do business in this state as surety. The bond shall be conditioned upon the faithful compliance of the landlord with Code Section 44-7-34 and the return of the security deposits in the event of the bankruptcy of the landlord or foreclosure of the premises and shall run to the benefit of any tenant injured by the landlord's violation of Code Section 44-7-34.
(b) The surety may withdraw from the bond by giving 30 days' written notice by registered or certified mail or statutory overnight delivery to the clerk of the superior court in the county in which the principal's dwelling unit is located, provided that such withdrawal shall not release the surety from any liability existing under the bond at the time of the effective date of the withdrawal.
(c) The clerk of the superior court shall receive a fee of $ 5.00 for filing and recording the surety bond and shall also receive a fee of $ 5.00 for canceling the surety bond. The clerk of the superior court shall not be held personally liable should the surety bond prove to be invalid.
(a) Prior to tendering a security deposit, the tenant shall be presented with a comprehensive list of any existing damage to the premises which shall be for the tenant's permanent retention. The tenant shall have the right to inspect the premises to ascertain the accuracy of such list prior to taking occupancy. The landlord and the tenant shall sign the list, and this shall be conclusive evidence of the accuracy of the list but shall not be conclusive as to latent defects. If the tenant refuses to sign the list, the tenant shall state specifically in writing the items on such list to which he or she dissents and shall sign such statement of dissent.
(b)(1) Within three business days after the termination of the residential lease and vacation of the premises or the surrender and acceptance of the premises, whichever occurs first, the landlord or his or her agent shall inspect the premises and compile a comprehensive list of any damage done to the premises which is the basis for any charge against the security deposit and the estimated dollar value of such damage. The tenant shall upon request have the right to inspect the premises and such list within five business days after the termination of the residential lease and vacation of the premises or the surrender and acceptance of the premises and the inspection by the landlord or his or her agent. If the tenant is present with the landlord at the time of the inspection, the landlord and the tenant shall sign the list, and this shall be conclusive evidence of the accuracy of the list. If the tenant refuses to sign the list, he or she shall state specifically in writing the items on the list to which he or she dissents and shall sign such statement of dissent. The landlord shall then comply with the provisions of Code Section 44-7-34.
(2) If the tenant vacates or surrenders the premises without notifying the landlord, the landlord shall inspect the premises and compile a comprehensive list of any damage done to the premises which is the basis for any charge against the security deposit and the estimated dollar value of such damage within a reasonable time after discovering the premises has been surrendered by vacancy. The landlord shall sign the list and then comply with the provisions of Code Section 44-7-34.
(c) A tenant who disputes the accuracy of the final damage list compiled pursuant to subsection (b) of this Code section and provided to the tenant pursuant to Code Section 44-7-34 may bring an action in any court of competent jurisdiction in this state to recover the portion of the security deposit which the tenant believes to be wrongfully withheld for damages to the premises. The tenant's claims shall be limited to those items to which the tenant specifically dissented in accordance with this Code section. If the tenant is present for the inspection of the premises after vacancy and signs the landlord's final damage list or fails to dissent specifically in accordance with this Code section, the tenant shall not be entitled to recover the security deposit or any other damages under Code Section 44-7-35, provided that the lists required under this Code section contain written notice of the tenant's duty to sign or to dissent to the list. A tenant who did not inspect the premises after vacancy or was not present for the landlord's inspection of the premises after vacancy and, in either case, did not request a copy of the landlord's final damage list shall have the right to dispute the damages assessed by the landlord.
(a) Within 30 days after obtaining possession of the premises as provided in subsection (b) of Code Section 44-7-33, a landlord shall return to the tenant the full security deposit which was deposited with the landlord by the tenant. No security deposit shall be retained to cover ordinary wear and tear which occurred as a result of the use of the premises for the purposes for which the premises were intended, provided that there was no negligence, carelessness, accident, or abuse of the premises by the tenant or members of his or her household or their invitees or guests. In the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement identifying the exact reasons for the retention thereof, which shall include the comprehensive list of damages prepared as required by Code Section 44-7-33, if the reason for retention is based on damages to the premises. When such statement is delivered, it shall be accompanied by a payment of the difference between any sum deposited and the amount retained. The landlord shall be deemed to have complied with this Code section by mailing such statement and any payment required to the last known address of the tenant via first-class mail. If the letter containing the payment is returned to the landlord undelivered and if the landlord is unable to locate the tenant after reasonable effort, the payment shall become the property of the landlord 90 days after the date the payment was mailed. Nothing in this Code section shall preclude the landlord from retaining the security deposit for nonpayment of rent or of fees for late payment, for abandonment of the premises, for nonpayment of utility charges, for repair work or cleaning contracted for by the tenant with third parties, for unpaid pet fees, or for actual damages caused by the tenant's breach, provided that the landlord attempts to mitigate the actual damages.
(b) In any court action in which there is a determination that neither the landlord nor the tenant is entitled to all or a portion of a security deposit under this article, the judge or the jury, as the case may be, shall determine what would be an equitable disposition of the security deposit; and the judge shall order the security deposit paid in accordance with such disposition.
(a) A landlord shall not be entitled to retain any portion of a security deposit if:
(1) The security deposit was not deposited in an escrow account in accordance with Code Section 44-7-31 or a surety bond was not posted in accordance with Code Section 44-7-32;
(2) The initial damage list required by subsection (a) of Code Section 44-7-33 was not made and presented to the tenant as required by such subsection; and
(3) The final damage list required by subsection (b) of Code Section 44-7-33 was not compiled and made available to the tenant as required by such subsection.
(b) The failure of a landlord to provide the lists and written statements within the time periods specified in Code Section 44-7-34 shall work a forfeiture of all the landlord's rights to withhold any portion of the security deposit or to bring an action against the tenant for damages to the premises.
(c) Any landlord who fails to return any part of a security deposit which is required to be returned to a tenant pursuant to this article shall be liable to the tenant in the amount of three times the sum improperly withheld plus reasonable attorney's fees; provided, however, that the landlord shall be liable only for the sum erroneously withheld if the landlord shows by the preponderance of the evidence that the withholding was not intentional and resulted from a bona fide error which occurred in spite of the existence of procedures reasonably designed to avoid such errors.
Code Sections 44-7-31, 44-7-32, 44-7-33, and 44-7-35 shall not apply to rental units which are owned by a natural person if such natural person, his or her spouse, and his or her minor children collectively own ten or fewer rental units; provided, however, that this exemption does not apply to units for which management, including rent collection, is performed by third persons, natural or otherwise, for a fee.
Notwithstanding any other provision of this chapter, if a person is on active duty with the United States military and enters into a residential lease of property for occupancy by that person or that person's immediate family and subsequently receives permanent change of station orders or temporary duty orders for a period in excess of three months, any liability of the person for rent under the lease may not exceed:
(1) Thirty days' rent after written notice and proof of the assignment are given to the landlord; and
(2) The cost of repairing damage to the premises caused by an act or omission of the tenant.
As used in this article, the term:
(1) “Application for execution of a writ of possession” means the request or application for a sheriff, constable, or marshal to execute a writ of possession which was issued pursuant to this article.
(2) “Writ of possession” means a writ issued to recover the possession of land or other property and such writ shall not contain restrictions, responsibilities, or conditions upon the landlord in order to be placed in full possession of the land or other property.
(a) In all cases when a tenant holds possession of lands or tenements over and beyond the term for which they were rented or leased to such tenant or fails to pay the rent when it becomes due and in all cases when lands or tenements are held and occupied by any tenant at will or sufferance, whether under contract of rent or not, when the owner of such lands or tenements desires possession of such lands or tenements, such owner may, individually or by an agent, attorney in fact, or attorney at law, demand the possession of the property so rented, leased, held, or occupied. If the tenant refuses or fails to deliver possession when so demanded, the owner or the agent, attorney at law, or attorney in fact of such owner may immediately go before the judge of the superior court, the judge of the state court, or the clerk or deputy clerk of either court, or the judge or the clerk or deputy clerk of any other court with jurisdiction over the subject matter, or a magistrate in the district where the land lies and make an affidavit under oath to the facts. The affidavit may likewise be made before a notary public.
(b) If issued by a public housing authority, the demand for possession required by subsection (a) of this Code section may be provided concurrently with the federally required notice of lease termination in a separate writing.
(a) When the affidavit provided for in Code Section 44-7-50 is made, the judge of the superior court, the state court, or any other court with jurisdiction over the subject matter or the judge, clerk, or deputy clerk of the magistrate court shall grant and issue a summons to the sheriff or his deputy or to any lawful constable of the county where the land is located. A copy of the summons and a copy of the affidavit shall be personally served upon the defendant. If the sheriff is unable to serve the defendant personally, service may be had by delivering the summons and the affidavit to any person who is sui juris residing on the premises or, if after reasonable effort no such person is found residing on the premises, by posting a copy of the summons and the affidavit on the door of the premises and, on the same day of such posting, by enclosing, directing, stamping, and mailing by first-class mail a copy of the summons and the affidavit to the defendant at his last known address, if any, and making an entry of this action on the affidavit filed in the case.
(b) The summons served on the defendant pursuant to subsection (a) of this Code section shall command and require the tenant to answer either orally or in writing within seven days from the date of the actual service unless the seventh day is a Saturday, a Sunday, or a legal holiday, in which case the answer may be made on the next day which is not a Saturday, a Sunday, or a legal holiday. If the answer is oral, the substance thereof shall be endorsed on the dispossessory affidavit. The answer may contain any legal or equitable defense or counterclaim. The landlord need not appear on the date of the tenant's response. The last possible date to answer shall be stated on the summons.
(c) If service is by posting a copy of the summons and the affidavit on the door of the premises and mailing a copy of the summons and the affidavit to the defendant, as provided in subsection (a) of this Code section, the court shall have jurisdiction to enter a default judgment for possession of the premises in the absence of an answer being filed, but in such instance a default judgment for money owed may not be entered unless the defendant files an answer or otherwise makes an appearance in the case.
(a) Except as provided in subsection (c) of this Code section, in an action for nonpayment of rent, the tenant shall be allowed to tender to the landlord, within seven days of the day the tenant was served with the summons pursuant to Code Section 44-7-51, all rents allegedly owed plus the cost of the dispossessory warrant. Such a tender shall be a complete defense to the action; provided, however, that a landlord is required to accept such a tender from any individual tenant after the issuance of a dispossessory summons only once in any 12 month period.
(b) If the court finds that the tenant is entitled to prevail on the defense provided in subsection (a) of this Code section and the landlord refused the tender as provided under subsection (a) of this Code section, the court shall issue an order requiring the tenant to pay to the landlord all rents which are owed by the tenant and the costs of the dispossessory warrant within three days of said order. Upon failure of the tenant to pay such sum, a writ of possession shall issue. Such payment shall not count as a tender pursuant to subsection (a) of this Code section.
(c) For a tenant who is not a tenant under a residential rental agreement as defined in Code Section 44-7-30, tender and acceptance of less than all rents allegedly owed plus the cost of the dispossessory warrant shall not be a bar nor a defense to an action brought under Code Section 44-7-50 but shall, upon proof of same, be considered by the trial court when awarding damages.
(a) If the tenant fails to answer as provided in subsection (b) of Code Section 44-7-51, the court shall issue a writ of possession instanter notwithstanding Code Section 9-11-55 or Code Section 9-11-62. The court, without the intervention of a jury, shall not require any further evidence nor hold any hearings and the plaintiff shall be entitled to a verdict and judgment by default for all rents due as if every item and paragraph of the affidavit provided for in Code Section 44-7-50 were supported by proper evidence.
(b) If the tenant answers, a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record except that if the action is tried in the magistrate court the trial shall be had in accordance with the procedures prescribed for that court. Every effort should be made by the trial court to expedite a trial of the issues. The defendant shall be allowed to remain in possession of the premises pending the final outcome of the litigation; provided, however, that, at the time of his answer, the tenant must pay rent into the registry of the court pursuant to Code Section 44-7-54.
(a) In any case where the issue of the right of possession cannot be finally determined within two weeks from the date of service of the copy of the summons and the copy of the affidavit, the tenant shall be required to pay into the registry of the trial court:
(1) All rent and utility payments which are the responsibility of the tenant payable to the landlord under terms of the lease which become due after the issuance of the dispossessory warrant, said rent and utility payments to be paid as such become due. If the landlord and the tenant disagree as to the amount of rent, either or both of them may submit to the court any written rental contract for the purpose of establishing the amount of rent to be paid into the registry of the court. If the amount of rent is in controversy and no written rental agreement exists between the tenant and landlord, the court shall require the amount of rent to be a sum equal to the last previous rental payment made by the tenant and accepted by the landlord without written objection; and
(2) All rent and utility payments which are the responsibility of the tenant payable to the landlord under terms of the lease allegedly owed prior to the issuance of the dispossessory warrant; provided, however, that, in lieu of such payment, the tenant shall be allowed to submit to the court a receipt indicating that payment has been made to the landlord. In the event that the amount of rent is in controversy, the court shall determine the amount of rent to be paid into court in the same manner as provided in paragraph (1) of this subsection.
(b) If the tenant should fail to make any payment as it becomes due pursuant to paragraph (1) or (2) of subsection (a) of this Code section, the court shall issue a writ of possession and the landlord shall be placed in full possession of the premises by the sheriff, the deputy, or the constable.
(c) The court shall order the clerk of the court to pay to the landlord the payments claimed under the rental contracts paid into the registry of the court as said payments are made; provided, however, that, if the tenant claims that he or she is entitled to all or any part of the funds and such claim is an issue of controversy in the litigation, the court shall order the clerk to pay to the landlord without delay only that portion of the funds to which the tenant has made no claim in the proceedings or may make such other order as is appropriate under the circumstances. That part of the funds which is a matter of controversy in the litigation shall remain in the registry of the court until a determination of the issues by the trial court. If either party appeals the decision of the trial court, that part of the funds equal to any sums found by the trial court to be due from the landlord to the tenant shall remain in the registry of the court until a final determination of the issues. The court shall order the clerk to pay to the landlord without delay the remaining funds in court and all payments of future rent made into court pursuant to paragraph (1) of subsection (a) of this Code section unless the tenant can show good cause that some or all of such payments should remain in court pending a final determination of the issues.
(a) If, on the trial of the case, the judgment is against the tenant, judgment shall be entered against the tenant for all rents due and for any other claim relating to the dispute. The court shall issue a writ of possession, both of execution for the judgment amount and a writ to be effective at the expiration of seven days after the date such judgment was entered, except as otherwise provided in Code Section 44-7-56.
(b) If the judgment is for the tenant, he shall be entitled to remain in the premises and the landlord shall be liable for all foreseeable damages shown to have been caused by his wrongful conduct. Any funds remaining in the registry of the court shall be distributed to the parties in accordance with the judgment of the court.
(c) Any writ of possession issued pursuant to this article shall authorize the removal of the tenant or his or her personal property or both from the premises and permit the placement of such personal property on some portion of the landlord's property or on other property as may be designated by the landlord and as may be approved by the executing officer; provided, however, that the landlord shall not be a bailee of such personal property and shall owe no duty to the tenant regarding such personal property. After execution of the writ, such property shall be regarded as abandoned.
(d) Subject to subsection (a) of this Code section and Code Section 44-7-59, applications for execution of a writ of possession shall be made within 30 days of issuance of the writ of possession unless such application for said writ is accompanied by an affidavit showing good cause for the delay in applying for execution of the writ. The failure to execute a writ in conformity with this Code section shall require the applicant to apply for a new writ.
(e) Nothing in this Code section shall require a sheriff, constable, or marshal to execute a writ of possession within 30 days from the issuance of any order granting a writ of possession, or the issuance, application, or request for the execution of the writ of possession.
(a) Any judgment by the trial court shall be appealable pursuant to Chapters 3, 6, and 7 of Title 5.
(b) An appeal made pursuant to subsection (a) of this Code section shall proceed as follows:
(1) A copy of the petition for review filed in the reviewing superior or state court or the notice of appeal shall be filed with the clerk of the trial court within seven days after the date the judgment was entered in the trial court;
(2) The clerk shall immediately notify the trial judge of the petition for review or notice of appeal, and the trial judge may, within 15 days after the same is filed in the trial court, supplement the record with findings of fact and conclusions of law which will be considered as a part of the order of the judge in that case;
(3) If the judgment of the trial court is against the tenant and the tenant appeals this judgment, the tenant shall notify the trial court of his or her appeal and pay into the registry of the reviewing superior or state court all sums found by the trial court to be due for rent in order to remain in possession of the premises; and
(4) The tenant shall pay all future rent as it becomes due into the registry of the reviewing superior or state court pursuant to paragraph (1) of subsection (a) of Code Section 44-7-54 until the issue has been finally determined on appeal.
This article shall apply to croppers and servants who continue to hold possession of lands and tenements after their employment as croppers or servants has terminated and in the same manner as it relates to tenants.
Anyone who, under oath or affirmation, knowingly and willingly makes a false statement in an affidavit signed pursuant to Code Section 44-7-50 or in an answer filed pursuant to Code Section 44-7-51 shall be guilty of a misdemeanor.
If the court issues a writ of possession to property upon which the tenant has placed a manufactured home, mobile home, trailer, or other type of transportable housing and the tenant does not move the same within ten days after a final order is entered, the landlord shall be entitled to have such transportable housing moved from the property at the expense of the tenant by a motor common carrier licensed by the Department of Public Safety for the transportation of manufactured housing. There shall be a lien upon such transportable housing to the extent of moving fees and storage expenses in favor of the person performing such services. Such lien may be claimed and foreclosed in the same manner as special liens on personalty by mechanics under Code Sections 44-14-363 and 44-14-550, except that storage fees not to exceed $4.00 per day shall be expressly allowed.
The landlord shall have power to distrain for rent as soon as the same is due if the tenant is seeking to remove his property from the premises.
When rent is due or the tenant is seeking to remove his property, the landlord, his agent, his attorney in fact, or his attorney at law may, upon a statement of the facts under oath, apply for a distress warrant before the judge of the superior court, the state court, the civil court, or the magistrate court within the county where the tenant may reside or where his property may be found.
When the affidavit provided for in Code Section 44-7-71 is made, the judge of the superior court, the state court, the civil court, or the magistrate court before whom it was made shall grant and issue a summons to the marshal or the sheriff or his deputy of the county where the tenant resides or where his property may be found. A copy of the summons and the affidavit shall be personally served upon the defendant. If an officer is unable to serve the defendant personally, service may be given by delivering the summons and affidavit to any person who is sui juris residing on the premises. The summons served on the defendant pursuant to this Code section shall command and require the tenant to appear at a hearing on a day certain not less than five nor more than seven days from the date of actual service.
In an action for nonpayment of rent, the tenant shall be allowed to tender to the landlord, within seven days of the day the tenant was served with the summons pursuant to Code Section 44-7-72, all rents allegedly owed plus the cost of the distress warrant. Such a tender shall be a complete defense to the action.
(a) At or before the time of the hearing, the defendant may answer in writing. The defendant may answer orally at the time of the hearing. If the answer is oral, the substance thereof shall be endorsed upon the affidavit. The answer may contain any legal or equitable defense or counterclaim.
(b) If the tenant fails to answer, the court shall grant a distress warrant; and the plaintiff shall be entitled to a verdict and judgment by default for all rents due as if every item and paragraph of the affidavit provided for in Code Section 44-7-71 were supported by proper evidence, which verdict shall be in open court or chambers and without the intervention of a jury.
(c) If the tenant answers, a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record except that if the action is tried in the magistrate court the trial shall be had in accordance with the procedures prescribed for that court. Every effort shall be made by the trial court to expedite a trial of the issues. The defendant shall be allowed to remain in possession of the premises and his property pending the final outcome of the litigation, provided that he complies with Code Section 44-7-75.
(a) At the time the tenant answers, the tenant shall pay into the registry of the trial court all rent admittedly owed prior to the issuance of the summons; provided, however, that, in lieu of such payment, the tenant shall be allowed to submit to the court a receipt indicating that the payment has been made to the landlord. In the event that the amount of rent is in controversy, the court shall determine the amount of rent to be paid into court in the same manner as provided in subsection (b) of this Code section.
(b) The tenant shall pay into the registry of the trial court all rent which becomes due after the issuance of the summons and shall pay said rent as it becomes due. If the landlord and tenant disagree as to the amount of rent, either or both of them may submit to the court any written rental contract for the purpose of establishing the amount of the rent to be paid into the registry of the court. If the amount of rent is in controversy and no written rental agreement exists between the tenant and the landlord, the court shall require the amount of rent to be a sum equal to the last previous rental payment made by the tenant and accepted by the landlord without written objection.
(c) If the landlord is also seeking a dispossessory warrant against the tenant pursuant to Article 3 of this chapter, money paid into court under Code Section 44-7-54 shall fully satisfy the requirements under subsections (a) and (b) of this Code section.
(d) After the date of the service of the summons as provided in Code Section 44-7-72, the tenant shall not transfer, convey, remove, or conceal his property without either posting bond as provided in Code Section 44-7-76 or complying with subsections (a) and (b) of this Code section.
(e) If the tenant shall fail to comply with any of the provisions of this Code section, the tenant shall not be entitled to retain possession of his property pending a trial on the merits as provided by Code Section 44-7-74 unless he posts bond as provided by Code Section 44-7-76. Failure to comply with any provision of this Code section shall in no way affect the tenant's ability to litigate the issues raised in his answer but shall only affect the possession of the property pendente lite. If judgment is against the tenant, the property involved shall be seized by the marshal, the sheriff, or the deputy, as the case may be, and held thereby for levy and sale after judgment as provided by Code Section 44-7-79.
(f) The court shall order the clerk of the court to pay to the landlord the amounts paid into the registry of the court as such payments are made; provided, however, that, if the tenant claims that he is entitled to all or a part of the funds and such claim is an issue of controversy in the litigation, the court shall order the clerk to pay to the landlord without delay only that portion of the funds to which the tenant has made no claim in the proceedings. That part of the funds which is a matter of controversy in the litigation shall remain in the registry of the court until a final determination of the issues.
In all cases where the tenant may desire to transfer, remove, or convey any of his property after the service of summons, the tenant shall post bond with good security for a sum equal to the value of the property or the amount of the rent alleged to be due, whichever is less, to be estimated by the judge, for the delivery of the property at the time and place of sale if the property shall be found subject to such rent. Upon the approval of the bond by the judge, the tenant may convey, transfer, or remove his property without restriction.
(a) If, on the trial of the case, the judgment is against the tenant, the judgment shall be entered against the tenant for all rent due and for any other claim relating to the dispute and the distress warrant shall be granted.
(b) If the judgment is for the tenant, he shall be entitled to remain in the premises and in possession of his property and the landlord shall be liable for all foreseeable damages shown to have been caused by his wrongful conduct. Any funds remaining in the registry of the court shall be distributed to the parties in accordance with the judgment of the court. If the tenant has been deprived of the possession of his property pendente lite pursuant to subsection (e) of Code Section 44-7-75, the court shall order that the property be returned immediately to the tenant.
Any judgment by the trial court shall be appealable to the appellate court pursuant to Chapters 2, 3, 6, and 7 of Title 5. If the judgment of the trial court is against the tenant and the tenant appeals this judgment, the tenant shall remain in the premises and in possession of his property; provided, however, that the tenant shall comply with all provisions of Code Section 44-7-75 or 44-7-76 until the issue has been finally determined on appeal.
Whenever a distress warrant is granted pursuant to this article, the distress warrant may be levied by the marshal, the sheriff, or the deputy on any property belonging to said tenant whether found on the premises or elsewhere; and the marshal, the sheriff, or the deputy shall advertise and sell the property in the same manner as in the case of levy and sale under execution.
The landlord's lien for his rent shall attach from the time that the affidavit is made pursuant to Code Section 44-7-71; but it shall take precedence over no lien of older date except as to the crop raised on the premises.
A third person may make a claim to the distrained property by giving the oath and the bond as is required in cases of other claims. Such a claim shall be returned and tried as is provided by law for the trial of the right of property levied upon by execution.
(a) As used in this Code section, the term “mobile home” means a movable or portable dwelling over 32 feet in length and over eight feet wide which is constructed to be towed on its own chassis and to be connected to utilities and is designed without a permanent foundation for year-round occupancy. A mobile home may consist of one or more components that can be retracted for towing purposes and subsequently expanded for additional capacity or may consist of two or more units separately towable but designed to be joined into one integral unit.
(b) A tenant's mobile home, as defined in subsection (a) of this Code section, shall be considered “property,” as that term is used in this article.
Where a person is employed to work for part of the crop, the relationship of landlord and tenant does not arise. The title to the crop, subject to the interest of the cropper therein, and the possession of the land remain in the owner of the land.
Whenever the relationship of landlord and cropper exists, the title to and right to control and possess the crops grown and raised upon the lands of the landlord by the cropper shall be vested in the landlord until the landlord has received his part of the crops so raised and has been fully paid for all advances made to the cropper in the year the crops were raised for the purpose of raising the crops.
In all cases where a cropper unlawfully sells or otherwise disposes of any part of a crop or where the cropper seeks to take possession of such crops or to exclude the landlord from the possession thereof while the title thereto remains in the landlord, the landlord shall have the right to repossess the crops by any process of law by which the owner of the property can recover it under the laws of this state.
(a) Any cropper who sells or otherwise disposes of any part of the crop grown by him without the consent of the landlord before the landlord has received his part of the crop and payment in full for all advances made to the cropper in the year the crop was raised for the purpose of raising such crop shall be guilty of a misdemeanor.
(b) Any landlord who fails or refuses, on demand, to deliver to the cropper the part of the crop or its value to which the cropper is entitled after payment for all advances made to him as provided in subsection (a) of this Code section shall be guilty of a misdemeanor.
This article shall be known and may be cited as the “Abandoned Mobile Home Act.”
The General Assembly finds that abandoned mobile homes are a nuisance that cause blight and depress property values. This article is intended to provide local governing authorities with the authority to appoint an agent to determine the condition of mobile homes in order for landowners to remove or restore abandoned mobile homes left on their property. It is the further purpose of this article to provide landowners with the guidance necessary to efficiently and properly identify and dispose of abandoned mobile homes in this state while protecting the rights of any owner, lienholder, or other interested parties by performing a due diligence search, notification, and hearing process.
As used in this article, the term:
(1) “Abandoned mobile home” means a mobile home that has been left vacant by all tenants for at least 90 days without notice to the landowner and when there is evidence of one or more of the following:
(A) A tenant's failure to pay rent or fees for 90 days;
(B) Removal of most or all personal belongings from such mobile home;
(C) Cancellation of insurance for such mobile home;
(D) Termination of utility services to such mobile home; or
(E) A risk to public health, safety, welfare, or the environment due to such mobile home.
(2) “Derelict” means an abandoned mobile home which is in need of extensive repair and is uninhabitable and unsafe due to the presence of one or more of the following conditions:
(A) Inadequate provisions for ventilation, light, air, or sanitation; or
(B) Damage caused by fire, flood, hurricane, tornado, earthquake, storm, or other natural catastrophe.
(3) “Dispose” means to destroy, recycle, or repurpose for use not as living quarters.
(4) “Intact” means an abandoned mobile home which is in livable condition under applicable state law and the building and health codes of a local governing authority.
(5) “Landowner” means the owner of real property upon which a mobile home is located.
(6) “Local government agent” means a person appointed by a local governing authority who is qualified to inspect an abandoned mobile home by demonstrating that he or she is qualified to determine if the abandoned mobile home is derelict or intact.
(7) “Manufactured home” shall have the same meaning as set forth in Code Section 8-2-160.
(8) “Mobile home” shall have the same meaning as set forth in Code Section 8-2-160 and shall include a manufactured home.
(9) “Responsible party” means any person with an ownership interest in an abandoned mobile home as evidenced by the last payor of record as identified by a search of deeds or instruments of title, and shall include any holder of a recorded lien or the holder of any type of secured interest in such abandoned mobile home or a local government with a claim for unpaid taxes.
(a) At the request of a landowner, a local government agent shall be authorized to assess the condition of such abandoned mobile home. Upon inspection, the local government agent shall classify such abandoned mobile home as either intact or derelict and provide documentation citing such determination to the requesting landowner within 20 days of such request.
(b) If a local government agent determines an abandoned mobile home to be intact, a landowner shall have a right to file a lien on such abandoned mobile home in the superior court for the circuit where such abandoned mobile home is located and in the amount of any unpaid rent as of the date on which such lien is filed and accrued fees. Such lien may be foreclosed pursuant to the procedure set forth in Code Section 44-7-115.
(c) If a local government agent determines an abandoned mobile home to be derelict, such agent shall post notice of such determination in a conspicuous location on such abandoned mobile home. Such notice shall include a date of issuance and shall be in substantially the following form:
“You are hereby notified that this mobile home (describe make, model, and color, if known) located at (address or description of location) has been deemed abandoned and derelict. You are entitled to a hearing in magistrate court to contest this determination. If you fail to request a hearing within 90 days from the date that appears on this notice or if it is confirmed by a court that this abandoned mobile home is derelict, the owner of the land upon which this mobile home sits shall be entitled to dispose of the mobile home.”
(d)(1) Upon receipt of a determination that an abandoned mobile home is derelict by a local government agent, and on the same date the notice required by subsection (c) of this Code section is posted, a landowner shall send notice, which notice shall include a listing of all responsible parties and last known addresses, to all responsible parties by registered or certified mail or statutory overnight delivery. Such notice shall contain a description of the abandoned mobile home, including the make of the mobile home, the location of such mobile home, and the fact that such abandoned mobile home has been deemed derelict. Such notice shall include a statement that such responsible party is entitled to request a hearing in magistrate court within 90 days from the date that appears on such notice to contest the determination that such abandoned mobile home is derelict and that failure to request such hearing within 90 days of receipt of such notice shall entitle such landowner to dispose of the derelict mobile home.
(2) If no responsible party can be ascertained, the landowner shall place an advertisement in a newspaper of general circulation in the county where such mobile home is located; if there is no newspaper in such county, shall post such advertisement at the county courthouse in such place where other public notices are posted. Such advertisement shall run in the newspaper once a week for two consecutive weeks or shall remain posted at the courthouse for two consecutive weeks. The advertisement shall contain a description of the mobile home, including the make of the mobile home, the location of such mobile home, and the fact that such mobile home has been deemed derelict. Such advertisement shall include a statement that such responsible party is entitled to request a hearing in magistrate court by a date certain and the advertisement shall state the specific end date to contest the determination that such abandoned mobile home is derelict and that failure to request such hearing by such date shall entitle such landowner to dispose of the derelict mobile home.
(e) Neither the local governing authority nor the local government agent shall bear any liability with respect to any lawful actions taken to make a determination that a mobile home is abandoned or derelict.
(a) Within the 90 day period described in Code Section 44-7-113, a responsible party, or after the expiration of such 90 day period, a landowner shall petition a magistrate court to hold a hearing to confirm or deny the decision of a local government agent that an abandoned mobile home is derelict. If a petition is filed pursuant to this Code section, a hearing on such issue shall be held within ten days of the filing of such petition.
(b) The court shall hear evidence of the condition of the abandoned mobile home, which may include introduction of a copy of the determination from the local government agent, and whether the notice provisions set forth have been met.
(c) If, after a full hearing, the court determines the abandoned mobile home to be derelict, the court shall issue an order finding such mobile home to be derelict and authorizing the landowner to dispose of such derelict mobile home. A landowner issued such order shall dispose of such derelict mobile home within 180 days of the date of such order. Within 30 days of disposal of a derelict mobile home, the landowner shall notify the Department of Revenue and local tag agent of such disposal and such department shall cancel the certificate of title for such derelict mobile home, if such certificate exists.
Notwithstanding any conflicting provisions in Code Section 44-14-349, all liens acquired upon an abandoned mobile home or intact mobile home under Code Section 44-7-113 shall be foreclosed as follows:
(1) Any proceeding to foreclose a lien on an abandoned mobile home determined to be intact by a local government agent shall be instituted in the magistrate court of the county where such mobile home is located within one year from the time the lien is recorded;
(2) The person desiring to foreclose a lien on an abandoned mobile home determined to be intact by a local government agent shall, by certified or registered mail or statutory overnight delivery, make a demand upon the responsible party in the amount of the lien and for the payment of rent and fees accrued after the filing of the lien; provided that the amount of such rent shall not exceed $3.00 per day. If the responsible party cannot be located, notice shall be published in a newspaper of general circulation for two consecutive weeks;
(3)(A) If, within 30 days of delivery to the appropriate address of the written demand required by paragraph (2) of this Code section or within 30 days after the last publication in a newspaper, the responsible party fails to respond to such demand or refuses to pay, or if the responsible party cannot be ascertained, the landowner may move to foreclose such lien. The person asserting such lien may move to foreclose by making an affidavit to a magistrate court showing all facts necessary to constitute such lien and the amount claimed to be due. Such affidavit shall aver that the notice requirements of Code Section 44-7-113 have been complied with, and such affidavit shall also aver that a demand for payment has been made and refused or that the identity of the responsible party cannot be ascertained. The landowner shall verify the statement by oath or affirmation with a signature affixed thereto.
(B) In addition to the filing fees required by Code Section 15-10-80, the fee for filing such affidavit shall be $5.00 per abandoned mobile home upon which a lien is asserted;
(4)(A) Upon the filing of such affidavit, the person asserting such lien shall give the clerk or judge of the court the address, if known, of all responsible parties and the clerk or judge of the court shall serve notice informing such responsible parties of a right to a hearing to determine if reasonable cause exists to believe that a valid debt exists; that such hearing shall be petitioned for within 30 days of receipt of such notice; and that, if no petition for such hearing is filed within the time allowed, the lien shall conclusively be deemed a valid one, foreclosure thereof allowed, and a public sale pursuant to Code Section 44-7-116 shall be authorized.
(B) Any notice required by this paragraph shall be by certified mail or statutory overnight delivery or, if the responsible party is unknown, by posting such notice at the county courthouse in such place where other public notices are posted;
(5) If a petition for a hearing is filed within the time allowed pursuant to paragraph (4) of this Code section, the magistrate court shall set such a hearing within ten days of filing of the petition. Upon the filing of such petition by a party defendant, neither the prosecuting lienholder nor the court may sell the mobile home. If, at the hearing, the magistrate court determines there is reasonable cause to believe that a valid debt exists, then the person asserting the lien shall retain possession of the mobile home or the court shall obtain possession of the mobile home, as ordered by the court;
(6) If no petition for a hearing is filed, or if, after a full hearing, the magistrate court determines that a valid debt exists, the court shall authorize foreclosure upon and sale of the mobile home subject to the lien to satisfy the debt if such debt is not otherwise immediately paid. The holder of a security interest in or a lien on the mobile home, other than the holder of a lien created by Code Section 44-7-113, shall have the right, in the order of priority of such security interest or lien, to pay the debt and court costs no later than 15 days after a magistrate court's order to authorize the foreclosure. If the holder of a security interest or lien does so pay the debt and court costs, such person shall have the right to possession of the mobile home, and that person's security interest in or lien on such mobile home shall be increased by the amount so paid. A magistrate court order shall be issued to this effect, and in this instance there shall not be a sale of the mobile home. If the debt owed is not timely paid by the holder of a security interest or an appeal of the magistrate court decision has not been timely filed pursuant to paragraph (8) of this Code section, the court shall issue an order authorizing the sale of such mobile home;
(7) If the magistrate court finds the actions of the person asserting the lien in retaining possession of the mobile home were not taken in good faith, then the court, in its discretion, may award damages to the mobile home owner and to any party which has been deprived of the rightful use of the mobile home; and
(8) Any order issued by the magistrate court shall be appealable pursuant to Chapter 3 of Title 5, provided that any such appeal shall be filed within seven days after the date such order was entered and provided, further, that, after the petition for review is filed with the clerk of the reviewing superior or state court, the clerk of such court shall immediately notify the magistrate court of the petition for review. If the order of the magistrate court is against the responsible party and the responsible party appeals such order, the responsible party shall be required to pay into the registry of the reviewing superior or state court all sums found by the magistrate court to be due in order to remain in possession of the mobile home. The responsible party shall also be required to pay all future rent into the registry of the reviewing superior or state court as it becomes due in such amounts specified in paragraph (2) of this Code section until the issue has been finally determined on appeal.
(a)(1) As used in this subsection, the term “public sale” means a sale:
(A) Held at a place reasonably available to persons who might desire to attend and submit bids;
(B) At which those attending shall be given the opportunity to bid on a competitive basis;
(C) At which the sale, if made, shall be made to the highest and best bidder; and
(D) Except as otherwise provided in Title 11 for advertising or dispensing with the advertising of public sales, of which notice is given by advertisement once a week for two weeks in the newspaper in which the sheriff's advertisements are published in the county where the sale is to be held, and which notice shall state the day and hour, between 10:00 A.M. and 4:00 P.M., and the place of sale and shall briefly identify the goods to be sold.
(2) Upon order of the magistrate court, the person holding the lien on the abandoned mobile home shall be authorized to sell such mobile home at public sale.
(b) After satisfaction of the lien, the person selling such mobile home shall, not later than 30 days after the date of such sale, provide the clerk of the court with a copy of the bill of sale as provided to the purchaser and remit the remaining proceeds of such sale, if any, to the clerk of the court. Any person who fails to comply with the requirements of this subsection shall be guilty of a misdemeanor.
The clerk of the magistrate court shall retain the remaining balance of the proceeds of a sale under Code Section 44-7-116, after satisfaction of liens, security interests, and debts, for a period of 12 months; and, if no claim has been filed against such proceeds by the owner of the abandoned mobile home or any interested party, then the clerk shall pay such remaining balance into the general fund of the municipality or county that employs the local government agent that made the determination that such mobile home was intact pursuant to Code Section 44-7-113.
The purchaser at a sale as authorized by this article shall receive a certified copy of the court order authorizing such sale. Any such purchaser may obtain a certificate of title to such mobile home by filing the required application, paying the required fees, and filing a certified copy of the order of the court with the Department of Revenue. The Department of Revenue shall then issue a certificate of title, which shall be free and clear of all liens and encumbrances.
Nothing in this article shall be construed to require a local governing authority to appoint a local government agent.
Running water belongs to the owner of the land on which it runs; but the landowner has no right to divert the water from its usual channel nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner.
The beds of nonnavigable streams belong to the owner of the adjacent land. If the stream is a dividing line between two parcels of land, each owner's boundary shall extend to the thread or the center of the main current of the water. If the current changes gradually, the boundary line follows the current. If from any cause the stream takes a new channel, the original line, if identifiable, remains the boundary. Gradual accretions of land on either side accrue to the owner of that side.
The owner of a nonnavigable stream is entitled to the same exclusive possession of the stream as he has of any other part of his land. The legislature has no power to compel or interfere with the owner's lawful use of the stream, for the benefit of those above or below him on the stream, except to restrain nuisances.
It shall be lawful for all corporations and individuals owning or controlling lands on both sides of any nonnavigable stream to construct and maintain a dam or dams, together with canals and appurtenances thereof, across the stream for the development of water power and for other purposes; provided, however, this Code section shall not be construed to release individuals or corporations constructing such dam or dams and appurtenant works from liability to private property owners for damages resulting from the construction and operation thereof either by overflow or otherwise.
(a) As used in this chapter, the term “navigable stream” means a stream which is capable of transporting boats loaded with freight in the regular course of trade either for the whole or a part of the year. The mere rafting of timber or the transporting of wood in small boats shall not make a stream navigable.
(b) The rights of the owner of lands which are adjacent to navigable streams extend to the low-water mark in the bed of the stream.
(c) The General Assembly finds that the state procured ownership of all navigable stream beds within its jurisdiction upon statehood and, as sovereign, is trustee of its peoples' rights to use and enjoy all navigable streams capable of use for fishing, hunting, passage, navigation, commerce, and transportation, pursuant to the common law public trust doctrine. The state continues to hold title to all such stream beds, except where title in a private party originates from a valid Crown or state grant before 1863. The General Assembly further finds that the public retained the aforementioned rights under such doctrine even where private title to beds originates from a valid grant.
The title to the beds of all nonnavigable tidewaters where the tide regularly ebbs and flows shall vest in the owner of the adjacent land for all purposes, including, among others, the exclusive right to the oysters, clams, and other shellfish therein or thereon. If the water is the dividing line between two parcels of land, each owner's boundary shall extend to the main thread or channel of the water. If the main thread or channel of the water changes gradually, the boundary line shall follow the same according to the change. If for any cause the water takes a new channel, the original line, if identifiable, remains the boundary. Gradual accretions of land on either side accrue to the owner of that side.
(a) A navigable tidewater is any tidewater, the sea or any inlet thereof, or any other bed of water where the tide regularly ebbs and flows which is in fact used for the purposes of navigation or is capable of transporting at mean low tide boats loaded with freight in the regular course of trade. The mere rafting of timber thereon or the passage of small boats thereover, whether for the transportation of persons or freight, shall not be deemed navigation within the meaning of this Code section and shall not make tidewaters navigable.
(b) For all purposes, including, among others, the exclusive right to the oysters and clams but not other fish therein or thereon, the boundaries and rights of the owners of land adjacent to or covered in whole or in part by navigable tidewaters shall extend to the low-water mark in the bed of the water.
Nothing in Code Sections 44-8-6 and 44-8-7 shall be so construed as to authorize such an exclusive appropriation of any tidewater, navigable or nonnavigable, by any person as will prevent the free use of the same by other persons for the purposes of passage and for the transportation of such freights as may be capable of being carried thereon.
All persons owning lands on any watercourses are authorized to ditch and embank their lands in order to protect the lands from freshets and overflows in the watercourses, provided that the ditching and embanking does not divert the watercourse from its ordinary channel; but nothing in this Code section shall be so construed as to prevent the owners of lands from diverting nonnavigable watercourses through their own lands.
The right to construct a bridge or to establish a ferry for private use across a watercourse within or adjoining one's lands is appurtenant to the ownership of the land; but the right to establish and operate a public bridge or ferry is a franchise to be granted by the state. Where the grant of such a franchise interferes with an owner's right of exclusive possession, just compensation must first be paid to the landowner. No such franchise granted by this state shall be held to be exclusive unless it is plainly and expressly declared to be exclusive in the grant; except, however, that any municipality of this state having a population of more than 200,000 according to the United States decennial census of 1930 or any future such census is authorized to grant an exclusive franchise pertaining to streets or sidewalks for a period of three years, but not subject to renewal, to any person, firm, or corporation under this authority to grant such a franchise whether or not it is plainly or expressly stated in the charter of the municipality.
The right of private way over another's land may arise from an express grant, from prescription by seven years' uninterrupted use through improved lands or by 20 years' use through wild lands, by implication of law when the right is necessary to the enjoyment of lands granted by the same owner, or by compulsory purchase and sale through the superior court in the manner prescribed by Article 3 of this chapter.
A right to an easement of light and air passing over another's land through existing lights or windows may not be acquired by prescription; but, when a person sells a house and the light necessary for the reasonable enjoyment thereof is derived from and across adjoining land belonging to such person, the easement of light and air over such vacant lot shall pass as an incident to the house sold as being necessary to the enjoyment thereof.
(a) Owners of adjoining lands owe to each other the lateral support of the soil of each to that of the other in its natural state. If they derive title from a common grantor, the lateral support shall include the weight of walls and other burdens that may be on it. If, at the time of the sale by such common grantor, there are buildings adjoining each other, the right shall extend to the lateral support which each adjacent wall gives to the other.
(b) On giving reasonable notice of his intention to the adjoining landowner, the owner of land has the right to make proper and needful excavations up to the boundary line for purposes of construction, provided that he uses ordinary care and takes reasonable precautions to sustain the land of the other.
A parol license to use another's land is revocable at any time if its revocation does no harm to the person to whom it has been granted. A parol license is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such case, it becomes an easement running with the land.
Where a way of necessity is appurtenant to land and the owner thereof purchases other land which provides him access to a highway over his own land, the way of necessity ceases.
An easement may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment.
No sale of real property under a fi. fa. for taxes or under a fi. fa. for any assessment for improvements shall extinguish or affect any easement or right of way in, over, under, or across said real property, which easement or right of way was created by an operation of law or by an express grant; provided, however, that an easement or right of way created by an express grant must be recorded prior to the recording of the fi. fa. for taxes or assessment for improvements under which the real property subject to the easement or right of way was sold.
This article shall be known and may be cited as the “Solar Easement Act of 1978.”
The General Assembly finds that the use of solar energy in this state can help reduce the nation's reliance upon imported fuels and that solar energy development should, therefore, be encouraged. The General Assembly further finds that, as the use of solar energy devices increases, the possibility of future shading of such devices by buildings or vegetation will also increase. Therefore, the General Assembly declares that solar easements may be established to allow the owner of a solar energy device to negotiate for assurance of continued access to sunlight.
Any easement obtained for the purpose of ensuring the exposure of a solar energy device shall be created in writing and shall be subject to the same requirements of conveyance and recording as other easements.
Any instrument creating a solar easement shall include, but shall not be limited to:
(1) A definite and certain description of the airspace affected by such easement; and
(2) Any terms or conditions or both under which the solar easement is granted or will be terminated.
(a) The superior court shall have jurisdiction to grant private ways to individuals to go from and return to their property and places of business. Private ways shall not exceed 20 feet in width and may be as much less as the applicant may choose or as the court may find to be reasonably necessary. They shall be kept open and in repair by the person on whose application they are established or his successor in title.
(b) When any person or corporation of this state owns real estate or any interest therein to which the person or corporation has no means of access, ingress, and egress and when a means of ingress, egress, and access may be had over and across the lands of any private person or corporation, such person or corporation may file his or its petition in the superior court of the county having jurisdiction; said petition shall allege such facts and shall pray for a judgment condemning an easement of access, ingress, and egress not to exceed 20 feet in width over and across the property of the private person or corporation. The filing of the petition shall be deemed to be the declaration of necessity; however, where it appears that the condemnor owns a right of access, ingress, and egress to his property over another route or owns an easement to a right of private way over another route, which right or easement is not less than 20 feet in width and which alternate route affords such person or corporation a reasonable means of access, ingress, and egress, or where the judge shall find that the exercise of such right of condemnation by the condemnor is otherwise unreasonable, the judge of the superior court is authorized under such circumstances to find that the condemnation and the declaration of necessity constitute an abuse of discretion and to enjoin the proceeding.
The petition shall describe the easement of private way sought to be condemned over the lands of another and shall state the distance and direction of the private way and the nature of any improvements through which the private way will go. There shall be attached to the petition or incorporated therein a plat showing the measurements and location of the private way. The petition shall state the names and addresses of all persons owning an interest in the property, if known, and shall be served in the following manner:
(1) Where the owner or owners of the property over which the private way is sought are known and reside in the county in which the land is located, the sheriff of the county shall serve each of the persons with a copy of the petition and any orders of the court thereon; and the sheriff shall make a return of the service;
(2) Where the owners of the property are known but reside in another county of this state, they may be served (A) either by the sheriff of the county in which the property is located or by the sheriff of the county of the residence of the owner or owners, such sheriff to make a return of the service, or (B) by the person or corporation seeking to condemn the private way or an agent thereof, in which event the return of service duly filed as a part of the record shall be prima-facie evidence as to the service so made and if not traversed shall be conclusive as to the service;
(3) Where the owner or owners of the property are known but reside outside of this state, the petition shall set forth the addresses of such nonresident owners, in which event it shall be the duty of the clerk of the superior court to cause a true and correct copy of the petition to be served upon the nonresident owner or owners. The clerk shall make and enter upon the original petition or attach thereto his certificate which certifies that he has served the owner or owners by mailing a copy of the petition by certified mail or statutory overnight delivery to the address given in the petition; and the clerk shall be allowed a fee of $2.00 for each entry of service to be taxed against the costs in the case;
(4) In the event any of the owners are minors or persons non compos mentis, the petition shall so state, in which case the petition shall be served on each minor defendant and each non compos mentis defendant in the same manner as provided by paragraph (3) of subsection (e) of Code Section 9-11-4; and
(5) In all cases, the matter shall be advertised once a week for four consecutive weeks in the county newspaper which carries the sheriff's advertisements. The advertisement shall describe the easement to be condemned as set forth in the petition and the owner or owners of the property so far as the same are known. Where this Code section has been complied with so far as possible, the advertisement shall be final and conclusive service upon all persons who are unknown or upon persons who are known but whose addresses and places of residence are unknown; and, in such event, the certificate of the sheriff of the county in which the land is located that such persons do not reside within said county, that he has made diligent inquiry as to their addresses, and that the same are unknown, which certificate is duly filed with the clerk, shall be prima-facie evidence of the fact so certified and unless traversed by a party at interest shall be conclusive. For each certificate the sheriff shall charge the same fee as is provided by law for the service of the petition upon residents of the county.
The petition for condemnation shall name an assessor to act on behalf of the person or corporation seeking to condemn the easement of private way; and the selection of a board of assessors shall be in the way and manner provided for by Part 3 of Article 1 of Chapter 2 of Title 22.
Upon the filing of the petition for condemnation, the judge of the superior court, after taking into consideration the requirements of service provided for in Code Section 44-9-41, shall make and enter up an order requiring the owner or owners of the property to show cause before him on a day certain as to why the easement for private way should not be condemned and requiring the said owner or owners to name an assessor to act on his or their behalf. On the return day, the judge shall fix the time and place for a hearing before the board of assessors; but the same may be changed by the board of assessors in accordance with Code Section 22-2-60. In all other respects, the hearing before the board of assessors, together with the assessment of damages by them, shall be as is provided for in Part 4 of Article 1 of Chapter 2 of Title 22.
Either party shall have the right to appeal from the award of the board of assessors to a jury in the superior court; and such appeals shall be made in accordance with and shall be controlled by Part 5 of Article 1 of Chapter 2 of Title 22.
Upon the final condemnation of the private way, it shall become the duty of the condemnor or his successors in title to maintain the private way and to keep it open and in a state of good repair. Failure to comply with this requirement for a period of one year shall constitute an abandonment of the private way; and the title thereto shall revert to the owner of the property over which the private way was condemned or his successors in title.
The amount of compensation to be assessed against the condemnor for the private way desired shall be determined by a verdict of the jury; and the case shall stand for trial at the first term after service is perfected or at any subsequent term at which the case may be reached for trial. If an issue is made by pleadings filed by any defendant regarding the condemnor's right to have a private way established or with respect to the location or width thereof, such issues shall likewise be determined by the jury. Damages assessed shall be paid into the court and shall be disbursed by the clerk in accordance with the court's order regarding the party or parties entitled thereto.
With respect to the judgment of the court in such case, any party may have all remedies provided by law, including a motion for a new trial, a motion for an appeal, a motion for judgment on the pleadings, or a motion for judgment notwithstanding the verdict. Before the judgment becomes final and after the determination of any motions or appeals, the compensation fixed by the jury shall be paid in cash into the registry of the court by the applicant; and, upon the failure to pay the compensation, the private way applied for shall be considered abandoned. Upon a motion made by any interested party and a notice of not less than ten days to the applicant for the private way, the court shall enter a judgment of abandonment accordingly. If the right to the private way is abandoned in this manner and, after notice to the applicant, the court so finds, no application for a private way over the same land shall thereafter be filed by the same applicant or his successor in title.
Code Section 44-9-47 shall not divest the court of jurisdiction to permit payment by the applicant of the compensation fixed by the jury upon terms to which the parties agree, including security for compensation so fixed, provided and on condition that the agreement of the parties is approved by the court and that the court fixes reasonable conditions under which the right of private way shall be abandoned and a judgment of abandonment entered after notice for a period of ten days in the manner provided by Code Section 44-9-47.
Private ways may be established by an agreement in writing between the parties concerned, which agreement may stipulate any damages to be paid. The agreement shall be entered on the official minutes of the county commission and the road deed file and, when so done, shall have the same effect as though established by Code Sections 44-9-40 through 44-9-48.
When a private way becomes established, it shall be entered on and fully described on the official minutes of the county commission and the road deed file; and the owner thereof shall be entitled to be protected in the use of the same as a public road.
Several landowners may join together in opening a private way or in maintaining it after establishment or both. When this has been done and has been entered on the official minutes of the county commission and the road deed file, the duties and privileges incident thereto shall extend to vendees of the same real estate.
When several landowners join together in opening a private way, they may apportion the road work among themselves.
If a private way is established over the wild lands of a person who has no notice of the proceeding, at any time within six months after the receipt of such notice he may proceed to have damages assessed against all the landowners who habitually use the private way.
Whenever a private way has been in constant and uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way.
When a person has established a private way and has enjoyed its use for as long as seven years, the right to use the private way shall become complete and the owners shall be barred from damages, provided that the owners have had six months' knowledge of such facts without moving for damages.
If a road has been used as a private way for as much as one year, the owner of the land over which it passes may not close it up without first giving the common users of the private way 30 days' written notice so that they may take steps to have it made permanent pursuant to Code Sections 44-9-42 through 44-9-48.
(a) When a private way is established over the land of another for the purpose of hauling wood, timber, or any other commodity to any place of landing where the business of rafting or shipping is carried on or to any railroad depot, the use of the private way shall not extend to the use of any landing erected by a person for his own benefit.
(b) Notwithstanding subsection (a) of this Code section, if there is only one bluff or place of landing, the owner may not appropriate it to himself exclusively if he will not be damaged by the admission of others to its use or if he is properly compensated for any damages he sustains; but no person shall be entitled to use the wood-slide or other improvement erected by another for his own use or a timber landing while the owner is using it.
When the applicant for a private way also desires to use another's landing, he must state this desire in his petition so that proper damages may be assessed for such use.
(a) In the event the owner or owners of land over which a private way may pass or any other person obstructs, closes up, or otherwise renders the private way unfit for use, the party or parties injured by the obstructions or other interference may petition the judge of the probate court in the county where the private way has been in use to remove the obstructions; and, upon the petition being filed, the judge shall issue a rule nisi directed to the party or parties complained against calling upon the offending parties to show cause why the obstructions should not be removed and the free use of said private way reestablished. The rule shall be served by the sheriff or his deputy at least three days before the day set for the hearing; and when the day arrives the judge shall proceed to hear evidence as to the obstructions or other interference. If it appears that the private way has been in continuous, uninterrupted use for seven years or more and no steps were taken to prevent the enjoyment of the same, the judge shall grant an order directing the party or parties so obstructing or otherwise interfering with the right of way to remove the obstructions or other interference within 48 hours; and, if the party or parties fail to remove the obstructions, the judge shall issue a warrant commanding the sheriff to remove the obstructions immediately.
(b) Except as otherwise provided in Article 6 of Chapter 9 of Title 15, either party who is dissatisfied with the judgment of the judge of the probate court pursuant to subsection (a) of this Code section may appeal to the superior court as a matter of right.
(c) The fee of the judge of the probate court in a proceeding under subsection (a) of this Code section shall be paid by the losing party. The sheriff's fees shall be the same as those charged for serving a petition or other process of court.
Once a private way is established, the judge of the probate court may declare it a public road, provided it is of sufficient length and importance and the number of persons who habitually use it can and will do as much work thereon as is their proper share in working the road alone or in connection with adjacent public roads.
Any person, firm, corporation, company of persons, or corporation chartered under the laws of any state of the United States who is actually engaged in the business of mining iron, copper, gold, coal, or any other metal or mineral; quarrying marble, granite, or any other stone; or making copperas, sulphur, saltpeter, alum, or other similar articles and who needs a right of way for a railroad, turnpike, or roadway; an easement for pipelines or power lines; or a common road across the lands of others in order to operate his business successfully may obtain a right of way in the manner provided in this article for acquiring the right to convey water across the lands of others by the owners of mines. All proceedings in relation thereto shall be had and the damages shall be assessed and paid according to the method of condemning land provided in Title 22.
In the event the parties disagree as to the necessity for the right of way sought to be condemned and as to the compensation to be paid to the landowners therefor, arbitrators may be selected as provided by Parts 1 and 2 of Article 2 of Chapter 9 of Title 9.
In all cases where it may be deemed desirable and necessary to divert any watercourse from its usual channel for any of the purposes specified in Code Section 44-9-70, it shall be lawful to submit the request to arbitration as provided in Chapter 9 of Title 9; and the arbitrators shall decide if it is necessary to divert the watercourse, who will be damaged by the diversion, and the amount of damage which will result.
(a) The owner of any mine shall have the right to enter upon any land between the mine and the water power upon which the mine is dependent and to cut thereon such ditch, canal, or tunnel or to construct such flume or other aqueduct and to build such dam as may be necessary to control the water power; provided, however, that the mine owner shall first have the damages assessed arising to the owner of the intervening land or to the owner of the land on which the dam is to be erected and shall pay such damages to the owner of the land so intervening or on which such dam is to be erected.
(b) After giving the owner of the land to be entered upon at least five days' notice of his intention to make such application, the owner of the mine shall present to the judge of the probate court of the county his written application for the right and privilege of cutting such ditch, canal, or tunnel or constructing such flume or aqueduct or erecting such dam.
(a) The owner of any mine shall have the right to enter upon any land and to cut and open thereon such ditches, canals, and tunnels or to construct such flumes or other aqueducts or such rope, wire, track, or other tramway or such wagonway as may be necessary to drain his mine, to carry off and drain away the water and tailings of the mine or mining operations, or to carry off and transport any crude ore from the mine or mining operations to the mill or other place of reduction where the ore is to be refined; provided, however, that the mine owner shall first have the damages arising or which may arise to the owner of the land assessed and shall pay same to the owners of such land.
(b) The mine owner who desires the right and privilege of cutting and opening ditches, canals, or tunnels or of constructing such flumes or other aqueducts shall make his application under and according to the provisions and requirements specified in Title 22 and all proceedings in relation thereto shall be had and the damages shall be assessed and paid according to the method of condemning land provided in Title 22, all of which provisions and requirements are extended to the owners of mines desiring to drain their mines and to carry off the water and tailings from their mines and mining operations through or over the land of others.
Any person or company of persons engaged in working a mine under a lease shall be held and regarded as the owner or owners and as such shall be entitled to avail himself or themselves of the benefits and privileges of this article.
In no instance shall a greater amount of water, measured in cubic feet, than the surplus be withdrawn and carried away entirely from a stream above any mill or factory, surplus water being that full amount of water that would run to waste with a tight mill dam at such mill or factory. This Code section shall apply as fully to owners of mines as to lessees of mines.
Any person or corporation desiring to build or construct any tramway to connect with any waterway or railway in this state for the purpose of transporting lumber, naval stores, and timber by means of the same may make application in writing to the judge of the probate court or the county commissioners of the county in which the tramway is to be located, which application shall set out the length of the tramway, the starting place and the terminus, and the line of its location.
When the application provided for in Code Section 44-9-90 has been filed in the office of the judge of the probate court or the office of the county commissioners, as the case may be, all the proceedings thereafter shall be the same as are allowed and directed by Title 22 for condemning property, except that the strip of land to be used for such purpose shall not exceed 20 feet in width.
If the tramway so laid out shall at any time cease to be used for such purposes, the land employed for such way shall revert to the owner thereof.
This article shall be known and may be cited as the “Georgia Uniform Conservation Easement Act.”
As used in this article, the term:
(1) “Conservation easement” means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations, the purposes of which include retaining or protecting natural, scenic, or open-space values of real property; assuring its availability for agricultural, forest, recreational, or open-space use; protecting natural resources; maintaining or enhancing air or water quality; or preserving the historical, architectural, archeological, or cultural aspects of real property.
(2) “Holder” means:
(A) A governmental body empowered to hold an interest in real property under the laws of this state or the United States; or
(B) A charitable corporation, charitable association, or charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic, or open-space values of real property; assuring the availability of real property for agricultural, forest, recreational, or open-space use; protecting natural resources; maintaining or enhancing air or water quality; or preserving the historical, architectural, archeological, or cultural aspects of real property.
(3) “Third-party right of enforcement” means a right provided in a conservation easement to enforce any of its terms granted to a governmental body, charitable corporation, charitable association, or charitable trust, which, although eligible to be a holder, is not a holder.
(a) Except as otherwise provided in this article, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements, except that a conservation easement may not be created or expanded by the exercise of the power of eminent domain.
(b) No right or duty in favor of or against a holder and no right in favor of a person having a third-party right of enforcement arises under a conservation easement before its acceptance by the holder and a recordation of the acceptance.
(c) Except as provided in subsection (c) of Code Section 44-10-4, a conservation easement is unlimited in duration unless the instrument creating it otherwise provides.
(d) An interest in real property in existence at the time a conservation easement is created is not impaired by it unless the owner of the interest is a party to the conservation easement or consents to it.
(e) The ownership or attempted enforcement of rights held by the holder of an easement shall not subject such holder to any liability for any damage or injury that may be suffered by any person on the property or as a result of the condition of such property encumbered by a conservation easement.
(f) No county, municipality, or consolidated government shall hold a conservation easement unless the encumbered real property lies at least partly within the jurisdictional boundaries of such county, municipality, or consolidated government.
(a) An action affecting a conservation easement may be brought by:
(1) An owner of an interest in the real property burdened by the easement;
(2) A holder of the easement;
(3) A person having a third-party right of enforcement; or
(4) A person authorized by other law.
(b) The easement holder shall be a necessary party in any proceeding of or before any governmental agency which may result in a license, permit, or order for any demolition, alteration, or construction on the property.
(c) This article does not affect the power of a court to modify or terminate a conservation easement in accordance with the principles of law and equity.
A conservation easement is valid even though:
(1) It is not appurtenant to an interest in real property;
(2) It can be or has been assigned to another holder;
(3) It is not of a character that has been recognized traditionally at common law;
(4) It imposes a negative burden;
(5) It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder;
(6) The benefit does not touch or concern real property; or
(7) There is no privity of estate or of contract.
(a) This article applies to any interest created after July 1, 1992, which complies with this article, whether designated as a conservation or facade easement, or as a covenant, protective covenant, equitable servitude, restriction, easement, or otherwise.
(b) This article applies to any interest created before July 1, 1992, if such interest would have been enforceable had such interest been created after July 1, 1992, unless retroactive application contravenes the Constitution or laws of this state or the United States.
(c) This article does not invalidate any interest, whether designated as a conservation or preservation or facade easement or as a covenant, protective covenant, equitable servitude, restriction, easement, or otherwise, that is enforceable under other law of this state.
This article shall be applied and construed to effectuate its general purpose to make uniform the laws with respect to the subject of this article among states enacting it.
A conservation easement may be recorded in the office of the clerk of the superior court of the county where the land is located. Such recording shall be notice to the board of tax assessors of such county of the conveyance of the conservation easement and shall entitle the owner to a revaluation of the encumbered real property so as to reflect the existence of the encumbrance on the next succeeding tax digest of the county. Any owner who records a conservation easement and who is aggrieved by a revaluation or lack thereof under this Code section may appeal to the board of equalization and may appeal from the decision of the board of equalization in accordance with Code Section 48-5-311.
This article shall be known and may be cited as the “Georgia Historic Preservation Act.”
The General Assembly finds that the historical, cultural, and esthetic heritage of this state is among its most valued and important assets and that the preservation of this heritage is essential to the promotion of the health, prosperity, and general welfare of the people. Therefore, in order to stimulate the revitalization of central business districts in this state's municipalities, to protect and enhance this state's historical and esthetic attractions to tourists and visitors and thereby promote and stimulate business in this state's cities and counties, to encourage the acquisition by cities and counties of conservation easements pursuant to Code Sections 44-10-1 through 44-10-8, and to enhance the opportunities for federal tax relief of this state's property owners under the relevant provisions of the Tax Reform Act of 1976 1 allowing tax deductions for rehabilitation of certified historic structures, the General Assembly establishes a uniform procedure for use by each county and municipality in the state in enacting ordinances providing for the protection, enhancement, perpetuation, and use of places, districts, sites, buildings, structures, and works of art having a special historical, cultural, or esthetic interest or value.
1 P.L. 94-455.
As used in this article, the term:
(1) “Certificate of appropriateness” means a document approving a proposal to make a material change in the appearance of a designated historic property or of a structure, site, or work of art located within a designated historic district, which document must be obtained from a historic preservation commission before such material change may be undertaken.
(2) “Commission” means a historic preservation commission created or established pursuant to Code Section 44-10-24.
(3) “Designation” means a decision by the local governing body of a municipality or county wherein a property or district proposed for preservation is located to designate such property or district as a “historic property” or as a “historic district” and thereafter to prohibit all material changes in appearance of such property or within such district prior to the issuance of a certificate of appropriateness by the historic preservation commission.
(4) “Exterior architectural features” means the architectural style, general design, and general arrangement of the exterior of a building or other structure, including, but not limited to, the kind or texture of the building material; the type and style of all windows, doors, and signs; and other appurtenant architectural fixtures, features, details, or elements relative to the foregoing.
(5) “Historic district” means a geographically definable area, urban or rural, which contains structures, sites, works of art, or a combination thereof which:
(A) Have special character or special historical or esthetic interest or value;
(B) Represent one or more periods or styles of architecture typical of one or more eras in the history of the municipality, county, state, or region; and
(C) Cause such area, by reason of such factors, to constitute a visibly perceptible section of the municipality or county.
(6) “Historic preservation jurisdiction,” in the case of a county, means the unincorporated area of the county; and, in the case of a municipality, such term means the area within the corporate limits of the municipality.
(7) “Historic property” means a structure, site, or work of art, including the adjacent area necessary for the proper appreciation or use thereof, deemed worthy of preservation by reason of its value to the municipality, county, state, or region for one or more of the following reasons:
(A) It is an outstanding example of a structure representative of its era;
(B) It is one of the few remaining examples of a past architectural style;
(C) It is a place or structure associated with an event or person of historic or cultural significance to the municipality, county, state, or region; or
(D) It is a site of natural or esthetic interest that is continuing to contribute to the cultural or historical development and heritage of the municipality, county, state, or region.
(8) “Local governing body” means the elected governing body or governing authority of any municipality or county of this state.
(9) “Material change in appearance” means a change that will affect only the exterior architectural features of a historic property or of any structure, site, or work of art within a historic district and may include any one or more of the following:
(A) A reconstruction or alteration of the size, shape, or facade of a historic property, including relocation of any doors or windows or removal or alteration of any architectural features, details, or elements;
(B) Demolition of a historic property;
(C) Commencement of excavation;
(D) A change in the location of advertising visible from the public way on any historic property; or
(E) The erection, alteration, restoration, or removal of any building or other structures within a designated historic district, including walls, fences, steps, and pavements, or other appurtenant features, except exterior paint alterations.
(10) “Person” includes any natural person, corporation, or unincorporated association.
Cities or counties which have adopted ordinances relative to planning and zoning for historic purposes as of March 31, 1980, under authority granted by a local constitutional amendment or by any other means, including cities or counties which have subsequently replaced or amended in whole or in part such ordinances, shall not be required to comply with this article and are authorized to create and regulate historic districts, zones, or sites pursuant to their existing local historic preservation ordinances.
(a) The local governing body of a municipality or county electing to enact an ordinance to provide for the protection, enhancement, perpetuation, or use of historic properties or historic districts shall establish or designate a historic preservation commission. Such local governing body shall determine the number of members of the commission, which shall be at least three, and the length of their terms, which shall be no greater than three years. A majority of the members of any such commission shall have demonstrated special interest, experience, or education in history or architecture; all the members shall reside within the historic preservation jurisdiction of their respective municipality or county except as otherwise provided by subsection (b) of this Code section; and all shall serve without compensation. In establishing such a commission and making appointments to it, a local governing body may seek the advice of any state or local historical agency, society, or organization.
(b) The local governing body of a county and the local governing body or bodies of one or more municipalities lying wholly or partially within such county may establish or designate a joint historic preservation commission. If a joint commission is established, the local governing bodies of the county and the municipality or municipalities involved shall determine the residence requirements for members of the joint commission.
Any municipal, county, or joint historic preservation commission appointed or designated pursuant to Code Section 44-10-24 shall be authorized to:
(1) Prepare an inventory of all property within its respective historic preservation jurisdiction having the potential for designation as historic property;
(2) Recommend to the municipal or county local governing body specific places, districts, sites, buildings, structures, or works of art to be designated by ordinance as historic properties or historic districts;
(3) Review applications for certificates of appropriateness and grant or deny the same in accordance with Code Section 44-10-28;
(4) Recommend to the municipal or county local governing body that the designation of any place, district, site, building, structure, or work of art as a historic property or as a historic district be revoked or removed;
(5) Restore or preserve any historic properties acquired by the municipality or county;
(6) Promote the acquisition by the city or county governing authority of conservation easements in accordance with Code Sections 44-10-1 through 44-10-8;
(7) Conduct an educational program on historic properties located within its historic preservation jurisdiction;
(8) Make such investigations and studies of matters relating to historic preservation as the local governing body or the commission itself may from time to time deem necessary or appropriate for the purposes of this article;
(9) Seek out state and federal funds for historic preservation and make recommendations to the local governing body concerning the most appropriate use of any funds acquired;
(10) Consult with historic preservation experts in the Department of Community Affairs or its successor and the Georgia Trust for Historic Preservation, Inc.; and
(11) Submit to the Department of Community Affairs or its successor a list of historic properties or historic districts designated as such pursuant to Code Section 44-10-26.
(a) Ordinances adopted by local governing bodies to designate historic properties or historic districts shall be subject to the following requirements:
(1) Any ordinance designating any property as a historic property or any district as a historic district shall require that the designated property or district be shown on the official zoning map of the county or municipality adopting such ordinance or that, in the absence of an official zoning map, the designated property or district be shown on a map of the county or municipality adopting such ordinance and kept by the county or municipality as a public record to provide notice of such designation in addition to other notice requirements specified by this Code section;
(2) Any ordinance designating any property as a historic property shall describe each property to be designated, shall set forth the name or names of the owner or owners of the property, and shall require that a certificate of appropriateness be obtained from the historic preservation commission prior to any material change in appearance of the designated property; and
(3) Any ordinance designating any district as a historic district shall include a description of the boundaries of the district, shall list each property located therein, shall set forth the name or names of the owner or owners of each property, and shall require that a certificate of appropriateness be obtained from the historic preservation commission prior to any material change in appearance of any structure, site, or work of art located within the designated historic district.
(b) No ordinance designating any property as a historic property and no ordinance designating any district as a historic district nor any amendments thereto may be adopted by the local governing body nor may any property be accepted or acquired as historic property by the local governing body until the following procedural steps have been taken:
(1) The commission shall make or cause to be made an investigation and shall report on the historic, cultural, architectural, or esthetic significance of each place, district, site, building, structure, or work of art proposed for designation or acquisition. This report shall be submitted to the Department of Community Affairs or its successor which will be allowed 30 days to prepare written comments concerning the report;
(2) The commission and the local governing body shall hold a public hearing on the proposed ordinance. Notice of the hearing shall be published at least three times in the principal newspaper of general circulation within the municipality or county in which the property or properties to be designated or acquired are located; and written notice of the hearing shall be mailed by the commission to all owners and occupants of such properties. All the notices shall be published or mailed not less than ten nor more than 20 days prior to the date set for the public hearing; and
(3) Following the public hearing, the local governing body may adopt the ordinance as prepared, adopt the ordinance with any amendments it deems necessary, or reject the proposal.
(c) Within 30 days immediately following the adoption of the ordinance, the owners and occupants of each designated historic property and the owners and occupants of each structure, site, or work of art located within a designated historic district shall be given written notification of such designation by the local governing body, which notice shall apprise said owners and occupants of the necessity for obtaining a certificate of appropriateness prior to undertaking any material change in the appearance of the historic property designated or within the historic district designated.
(a) After the designation by ordinance of a historic property or of a historic district, no material change in the appearance of the historic property or of a structure, site, or work of art within the historic district shall be made or be permitted to be made by the owner or occupant thereof unless and until application for a certificate of appropriateness has been submitted to and approved by the commission. Such application shall be accompanied by such drawings, photographs, or plans as may be required by the commission.
(b) The Department of Transportation and any contractors, including cities and counties, performing work funded by the Department of Transportation are exempt from this article. Local governments are exempt from the requirement of obtaining certificates of appropriateness; provided, however, that local governments shall notify the commission 45 days prior to beginning an undertaking that would otherwise require a certificate of appropriateness and allow the commission an opportunity to comment.
(a) Prior to reviewing an application for a certificate of appropriateness, the commission shall take such action as may reasonably be required to inform the owners of any property likely to be affected materially by the application and shall give the applicant and such owners an opportunity to be heard. In cases where the commission deems it necessary, it may hold a public hearing concerning the application.
(b) The commission shall approve the application and issue a certificate of appropriateness if it finds that the proposed material change in appearance would not have a substantial adverse effect on the esthetic, historical, or architectural significance and value of the historic property or the historic district. In making this determination, the commission shall consider, in addition to any other pertinent factors, the historical and architectural value and significance; architectural style; general design, arrangement, texture, and material of the architectural features involved; and the relationship thereof to the exterior architectural style and pertinent features of other structures in the immediate neighborhood.
(c) In its review of applications for certificates of appropriateness, the commission shall not consider interior arrangement or uses having no effect on exterior architectural features.
(d) The commission shall approve or reject an application for a certificate of appropriateness within 45 days after the filing thereof by the owner or occupant of a historic property or of a structure, site, or work of art located within a historic district. Evidence of approval shall be by a certificate of appropriateness issued by the commission. Failure of the commission to act within the 45 day period shall constitute approval, and no other evidence of approval shall be needed.
(e) In the event the commission rejects an application, it shall state its reasons for doing so and shall transmit a record of such action and the reasons therefor, in writing, to the applicant. The commission may suggest alternative courses of action it thinks proper if it disapproves of the application submitted. The applicant, if he so desires, may make modifications to the plans and may resubmit the application at any time after doing so.
(f) In cases where the application covers a material change in the appearance of a structure which would require the issuance of a building permit, the rejection of an application for a certificate of appropriateness by the commission shall be binding upon the building inspector or other administrative officer charged with issuing building permits; and, in such a case, no building permit shall be issued.
(g) Where such action is authorized by the local governing body and is reasonably necessary or appropriate for the preservation of a unique historic property, the commission may enter into negotiations with the owner for the acquisition by gift, purchase, exchange, or otherwise of the property or any interest therein.
(h) Where, by reason of unusual circumstances, the strict application of any provision of this article would result in exceptional practical difficulty or undue hardship upon any owner of any specific property, the commission, in passing upon applications, shall have the power to vary or modify strict adherence to the provisions or to interpret the meaning of the provision so as to relieve such difficulty or hardship; provided, however, that such variance, modification, or interpretation shall remain in harmony with the general purpose and intent of the provisions so that the architectural or historical integrity or character of the property shall be conserved and substantial justice done. In granting variations, the commission may impose such reasonable and additional stipulations and conditions as will in its judgment best fulfill the purpose of this article.
(i) The commission shall keep a record of all applications for certificates of appropriateness and of all its proceedings.
(j) Any person adversely affected by any determination made by the commission relative to the issuance or denial of a certificate of appropriateness may appeal such determination to the governing body of the county or municipality in whose historic preservation jurisdiction the property in question is located; and such governing body may approve, modify and approve, or reject the determination made by the commission if the governing body finds that the commission abused its discretion in reaching its decision. The ordinances adopted in conformity with Code Section 44-10-26 shall specify the procedures for the review of decisions of the commission by the governing body of the county or municipality involved. Appeals from decisions of the governing body made pursuant to this article may be taken to the superior court in the manner provided by law for appeals from a conviction for municipal or county ordinance violations.
Nothing in this article shall be construed to prevent the ordinary maintenance or repair of any exterior architectural feature in or on a historic property, which maintenance or repair does not involve a material change in design, material, or outer appearance thereof, nor to prevent any property owner from making any use of his property not prohibited by other laws, ordinances, or regulations.
The municipal or county governing body or the historic preservation commission shall be authorized to institute any appropriate action or proceeding in a court of competent jurisdiction to prevent any material change in the appearance of a designated historic property or historic district, except those changes made in compliance with the provisions of an ordinance adopted in conformity with this article, or to prevent any illegal act or conduct with respect to such historic property or historic district.
Violations of any ordinance adopted in conformity with this article shall be punished in the same manner as provided by charter or local law for the punishment of violations of other validly enacted municipal or county ordinances.
This chapter shall be known and may be cited as the “Georgia Farmland Conservation Act.”
The General Assembly finds and declares that:
(1) Ensuring permanent conservation of farmland is of vital importance to the state and the citizens of Georgia and essential in protecting Georgia's agricultural economy, the ecological benefits provided by agricultural lands and activities, the community character enhanced by agricultural landscapes, and food production in the state;
(2) Creating the Georgia Farmland Conservation Fund Program will enable owners of farmland to voluntarily protect their farmland, facilitate the transition of farms under development pressure to next-generation farmers, increase the supply of locally grown food in this state, and facilitate utilization of federal and local funds to benefit Georgia's farmland; and
(3) Utilizing nonprofit organizations, in addition to government entities, to hold agricultural conservation easements will provide substantial benefit to the state by allowing the state to maximize the availability of matching funds from federal programs designed to protect farmland and food production in the state and reduce the costs and burdens to the state associated with enforcing the terms of agricultural conservation easements.
As used in this article, the term:
(1) “Agricultural conservation easement” means a conservation easement that, in accordance with the provisions of Article 1 of Chapter 10 of Title 44, the “Georgia Uniform Conservation Easement Act,” imposes limitations or affirmative obligations, the purpose of which include assuring the availability of real property for agricultural uses or the retention or protection of natural, scenic, or open-space values of real property.
(2) “Commissioner” means the Commissioner of Agriculture.
(3) “Conservation easement” shall have the same meaning as set forth in Code Section 44-10-2.
(4) “Costs of acquisition” means all direct costs of activities, including, but not limited to, appraisals that are required by applicable state laws and local ordinances or policies in order to convey an agricultural conservation easement in qualified farmland to a qualified holder; provided, however, that such costs shall not include any costs for services provided in violation of Chapter 40 of Title 43.
(5) “Council” means Georgia Farmland Advisory Council.
(6) “Department” means the Department of Agriculture.
(7) “Fund” means the Georgia Farmland Conservation Fund.
(8) “Program” means the Georgia Farmland Conservation Fund Program.
(9) “Project proposal” means any application seeking moneys from the Georgia Farmland Conservation Fund.
(10) “Qualified easement holder” means a state agency, federal agency, county, municipality, or a 501(c)(3) nonprofit organization which acquires or proposes to acquire, whether through purchase, donation or transfer, an agricultural conservation easement.
(11) “Qualified farmland” means agricultural land in undeveloped areas or that has been developed only to the extent consistent with agricultural production, including row crops, livestock, nurseries, orchards, or pastures.
(a)(1) The state treasurer shall establish a separate trust fund in the state treasury that shall be known as the Georgia Farmland Conservation Fund, consisting of annual appropriations by the legislature to the fund, public or private grants, gifts, donations, or contributions dedicated to the fund for farmland conservation, and moneys from any other source, including proceeds from the sale of bonds, state, federal or private mitigation funds, or moneys from any local, state, or federal program dedicated to the fund for farmland conservation.
(2) The state treasurer shall invest the money held in the Georgia Farmland Conservation Fund in the same manner in which state funds are invested as authorized by the State Depository Board pursuant to Article 3 of Chapter 17 of Title 50. Interest earned by the money held in the trust fund shall be accounted for separately and shall be credited to the trust fund to be disbursed as other moneys in the trust fund.
(b) Moneys in the Georgia Farmland Conservation Fund shall be expended by the Commissioner solely as provided in this article.
(c) The Commissioner shall prepare an accounting of the moneys expended pursuant to this Code section during the most recently completed fiscal year to be provided to the Office of Planning and Budget, the House Budget and Research Office, and the Senate Budget and Evaluation Office by January 1 of each year.
(a) There is established the Georgia Farmland Conservation Fund Program to be administered by the department. In administering the program, the department shall, each fiscal year, make available moneys from the Georgia Farmland Conservation Fund for matching grants to any prospective qualified easement holder having a project proposal which has been reviewed by the department and approved by the council.
(b) Any project proposal selected to receive a matching grant through the program shall have as its primary purposes the advancement of farmland conservation and the support of active farming and food production in this state. Award grants from the program may include payment:
(1) To qualified easement holders for the purchase of agricultural conservation easements on qualified farmland, for advancing farmland conservation, and to support active farming and food production in Georgia; or
(2) For the costs of acquisition related to the purchase of agricultural conservation easements approved by the program.
(c) As a cost of administering the program, the department may annually deduct and retain an amount equal to 5 percent of the fund.
In administering the program, the department shall, under the direction and advice of the council:
(1) Give priority to project proposals that protect agricultural lands susceptible to development, subdivision, and fragmentation;
(2) Adopt a scoring process for evaluating project proposals and prioritizing projects based on the extent that the project will:
(A) Protect farmland in active or planned cultivation;
(B) Prevent development or fragmentation that would result in farmland loss;
(C) Support transition of affordable farmland to next-generation farmers;
(D) Leverage local, federal, or private funding, taking into account whether such funding includes a match requirement;
(E) Support conservation priorities, including, but not limited to, protection of habitat, water quality, watershed conservation, climate resiliency, local conservation plans, and public viewshed;
(F) Preserve or enhance soil quality; and
(G) Create or further enhance compatibility with existing military installations; and
(3) Ensure that, per its terms, any agricultural conservation easement to be acquired through the project:
(A) Is of perpetual duration;
(B) May not be assigned to or enforced by a third party without the express written consent of the landowner; and
(C) Aligns with existing federal and local programs to maximize potential for matching funds.
(a) There is created the Georgia Farmland Advisory Council to advise and assist the department with administration and implementation of the program utilizing the criteria proposed by the department and adopted by the council. The council shall consist of 14 members as follows:
(1) The Commissioner, or his or her designee, who shall also serve as chairperson of the council;
(2) Two members appointed by the Governor as follows:
(A) One member who operates a family farm in this state; and
(B) One member who is the designated representative of a banking or lending organization and with significant experience in agricultural lending;
(3) One member who operates a family farm in this state, appointed by the Lieutenant Governor;
(4) Four members appointed by the Commissioner as follows:
(A) One member who operates a family farm in this state;
(B) One member who is the designated representative of a statewide agricultural organization;
(C) One member who is a designated representative of a statewide nonprofit agricultural or conservation organization operating in this state; and
(D) One member from the state at-large;
(5) One member who operates a family farm in this state, appointed by the Speaker of the House of Representatives;
(6) The president of the Georgia Agribusiness Council;
(7) The deans of the Colleges of Agriculture at the University of Georgia, Abraham Baldwin Agricultural College, or Fort Valley State University, who shall each serve rotating, nonconcurrent three-year terms, or his or her designee;
(8) The executive director of the State Soil and Water Conservation Commission;
(9) The president of the Georgia Farm Bureau or his or her designee; and
(10) The Georgia state conservationist of the Natural Resources Conservation Service, who shall serve as a nonvoting member.
(b) Initially appointed members shall serve staggered terms of office as follows: two members as appointed by the Speaker of the House of Representatives and the Commissioner for one year, three members as appointed by the Commissioner for two years, and three members as appointed by the Governor and Lieutenant Governor for three years.
(c) The members shall serve without compensation; provided, however, that the members shall receive the same per diem allowance and reimbursement of expenses as allowed for members of the General Assembly.
(d) The council shall meet at least quarterly each year for the transaction of its business.
(e) Three-fifths of the members of the council present at any board meeting shall constitute a quorum necessary for the transaction of business; provided, however, that in absence of a quorum, a majority of the members present may adjourn the meeting from time to time until a quorum shall attend. Unless otherwise specified in this Code section, any council action or recommendation shall be approved by a simple majority of the members of the entire council then in office.
The council shall have the power and duty to:
(1) Annually review and approve award grants recommended by the department;
(2) Review and approve rules and regulations promulgated by the department for administration of the program; and
(3) Review the outcomes of the program and recommend to the department changes in program administration or rules to ensure the success of the program.
A plaintiff in ejectment must recover on the strength of his own title and not on the weakness of the defendant's title. Where both parties claim under a common grantor, it is not necessary to show title back of such common grantor.
A plaintiff in ejectment may recover the premises in dispute upon his prior possession alone against one who subsequently acquires possession of the land by mere entry and without any lawful right whatsoever.
Any joint tenant, tenant in common, or other person having a part interest in lands or tenements may bring an action of ejectment for the recovery of such lands or tenements or an action for damages for injury thereto without joining with him any other person as plaintiff. The judgment in such a case shall not affect the rights of those interested in such lands or tenements who are not parties to the action.
When several persons claim several parcels of land under distinct titles and do not sustain to each other the relationship of landlord and tenant, a joint action of ejectment may not be maintained against them nor may a joint or several recovery be had in such action either for the premises or for mesne profits.
A plaintiff in ejectment may in all cases make the true claimant a defendant by serving a copy of the pending action upon him, and the person so notified shall be bound by the judgment.
A defendant in ejectment may disclaim any claim of title or right of possession. After such disclaimer is filed, such defendant shall not be liable for any future court costs.
(a) By adding a count in his petition and submitting the evidence to the jury, the plaintiff in ejectment may recover by way of damages all such sums of money to which he may be entitled by way of mesne profits, together with the premises in dispute.
(b) No plaintiff in ejectment shall have and maintain a separate action in his behalf for the recovery of mesne profits which may have accrued to him from the premises in dispute.
A trespasser may not set off improvements in an action brought for mesne profits except when the value of the premises has been increased by the repairs or improvements which have been made. In that case, the jury may take into consideration the improvements or repairs and may diminish the profits by that amount but not below the sum which the premises would have been worth without such improvements or repairs.
(a) In all actions for the recovery of land, the defendant who has a bona fide possession of the land under adverse claim of title may set off the value of all permanent improvements placed on the land in good faith by himself or other bona fide claimants under whom he claims. If the legal title to the land is found to be in the plaintiff and if the value of such improvements at the time of the trial exceeds the mesne profits, the jury may render a verdict in favor of the plaintiff for the land and in favor of the defendant for the amount of the excess of the value of the improvements over the mesne profits.
(b) The verdict mentioned in subsection (a) of this Code section shall find the value of the land itself at the time of the trial. Such verdict shall give the plaintiff the right:
(1) To have and recover the premises subject to the payment to the defendant of the excess of the value of the improvements over the mesne profits, such payment to be made by the plaintiff to the defendant within such time as may be fixed by the court in the decree; or
(2) To receive from the defendant the value of the land and the mesne profits found by the jury to be due to the plaintiff, such payment to be made by the defendant to the plaintiff within such time as the court may direct by its decree.
In the event that the plaintiff fails to make the payment pursuant to paragraph (1) of this subsection within the time allowed in the decree, the defendant shall have the right to pay to the plaintiff the value of the land and the mesne profits in accordance with paragraph (2) of this subsection. In all cases in which a setoff of improvements is sought in excess of mesne profits, the jury shall have the right to fix the time from which mesne profits shall be allowed.
(c) Upon the defendant making the payment to the plaintiff with all court costs of the proceedings, the defendant shall then acquire and have all the right and title the plaintiff had and held in and to the property in dispute. The court may by its decree require the plaintiff to make such titles to the lands in dispute as may be necessary in the premises, or to have the premises sold by a commissioner appointed by the court and the proceeds of such sale divided between the plaintiff and the defendant in the ratio or proportion that the value of the land itself bears to the amount of the excess of value of improvements over the mesne profits, or to recover the value of the land itself together with the amount of any excess of the value of the mesne profits over and above the value of the improvements. In case the plaintiff elects to recover the value of the land itself together with the amount of the excess of value of mesne profits over the value of the improvements, any fi. fa. issued upon the verdict and judgment entered therein shall be levied upon the lands and improvements; and the same shall be sold by the sheriff after due advertisement under the law governing sheriffs' sales.
(d) In those cases contemplated by this Code section, the court shall mold a decree to carry out and effectuate fully the provisions of the verdict.
(e) The purchaser of the premises, whether the same are sold by a commissioner appointed by the court or by the sheriff under a fi. fa. as provided in subsection (c) of this Code section, shall acquire all the right, title, and interest in the land and the improvements owned and possessed by the plaintiff or the defendant.
A previous warrantor of the title to the land in dispute may be a codefendant in an action of ejectment, provided he would be answerable in damages in case of eviction.
If a codefendant in any action of ejectment dies after the commencement of the action, the action may proceed against the surviving defendant without making the representative of the deceased codefendant a party.
The plaintiff shall attach an abstract of the title relied on for recovery to the petition for the recovery of land and mesne profits.
A judgment in ejectment shall be conclusive as to the title between the parties thereto unless the jury awards the plaintiff less than the fee.
When a verdict in ejectment is rendered in favor of the plaintiff and a judgment is entered thereon, the clerk of the superior court shall issue a writ of possession in which the clerk shall incorporate a clause directing the sheriff to collect by levy and sale of the defendant's property all sums of money awarded to the plaintiff in ejectment as mesne profits and costs.
The writ of possession shall not issue against third persons who were not known in the action on which such writ of possession is founded nor against third persons who were not put in possession by and do not claim under or by virtue of any conveyance from the defendant in the action.
When any person, either by himself, his agent, or his attorney in fact, shall take and subscribe an affidavit in writing before any officer authorized to administer an oath setting forth that he claims, in good faith, the right of possession to the described land or tenement and that such land or tenement is in the hands of another named person who does not in good faith claim a right to such possession and yet refuses to abandon the same, it shall be the duty of the sheriff of the county where the land or tenement is located, upon receiving such affidavit, to exhibit such affidavit to the person described as being in possession of such land or tenement at the earliest possible day and to turn such person out of possession unless the person in possession tenders to the sheriff a counteraffidavit stating that he claims, in good faith, a legal right to the possession of the land or tenement.
The sheriff shall be a competent officer to administer the oath to the person in possession if he desires to tender the counteraffidavit provided for in Code Section 44-11-30.
If the party in possession submits a counteraffidavit as provided in Code Section 44-11-30, the sheriff shall not turn him out of possession but shall leave both parties in their respective positions. In such an event, the sheriff shall return both affidavits to the office of the clerk of the superior court of the county in which the land is located for a trial of the issue before a jury in accordance with the laws of this state.
If the jury, upon the trial provided for in Code Section 44-11-32, finds for the plaintiff, the clerk of the court shall issue a writ of possession and a fi. fa. for the costs of the proceeding.
Application may be made and partition of personal property may be obtained in the same manner and under the same regulations as are prescribed by law for obtaining a partition of lands and tenements.
A chose in action is personalty to which the owner has a right of possession in the future or a right of immediate possession which is being wrongfully withheld.
For every violation of an express or implied contract and for every injury done by another to one's person or property, the law gives a right to recover and a remedy to enforce it. The right is a chose in action, and the remedy is an action at law.
Except as may be otherwise provided in Title 11, all choses in action arising upon contract may be assigned so as to vest the title in the assignee, but he takes it, except negotiable instruments subject to the equities existing between the assignor and debtor at the time of the assignment, and until notice of the assignment is given to the person liable.
A fund may be assigned in writing. The written acceptance of a draft will be treated as an assignment pro tanto of funds of the drawer in the hands of the acceptor.
Except for those situations governed by Code Sections 11-2-210 and 11-9-406, a right of action is assignable if it involves, directly or indirectly, a right of property. A right of action for personal torts, for legal malpractice, or for injuries arising from fraud to the assignor may not be assigned.
A bailment is a delivery of goods or property upon a contract, express or implied, to carry out the execution of a special object beneficial either to the bailor or bailee or both and to dispose of the property in conformity with the purpose of the trust.
As a general rule, the contract of bailment is an entire contract and a full performance is a condition precedent to an action upon it.
During the bailment, in all cases the bailee has a right to the possession of the property and in most cases a special right of property in the thing bailed. For a violation of these rights by anyone he has a cause of action.
All bailees are required to exercise care and diligence to protect the thing bailed and to keep it safe. Different degrees of diligence are required according to the nature of the bailments.
In all cases of bailment, after proof of loss by the bailor, the burden of proof is on the bailee to show proper diligence.
In order for a bailee to avail himself of an act of God or an exception under the contract as a defense, he must establish not only that the act of God or excepted fact ultimately occasioned the loss but that his own negligence did not contribute to the loss.
The term “hiring” means a contract by which one person grants to another either the enjoyment of a thing or the use of the labor and industry of himself during a certain time and for a stipulated compensation or by which one person contracts for the labor or services of another person with regard to a thing bailed to such other person for a specified purpose.
The hirer of things acquires a qualified ownership of them for the time specified, which qualified ownership entitles him to all their increase and to the possession and enjoyment of them during the period of bailment against everyone else, including the owner himself.
(a) The duties of the hirer of things are:
(1) To put the thing to no other use than that for which it is hired;
(2) To take ordinary care in its use;
(3) To redeliver the thing at the expiration of the bailment; and
(4) To comply generally with the terms of the hiring.
(b) If the bailor sends his own agents with the thing bailed, the hirer shall not be liable for the acts of such agents but shall only be liable either to the bailor or to third persons for the consequences of his own directions and for gross neglect.
The obligations of the bailor of things are:
(1) To do no act to deprive the hirer of the use and enjoyment of the chattel during the period of the bailment;
(2) To keep the thing in suitable order and repair for the purposes of the bailment; and
(3) To warrant the right of possession and that the thing bailed is free from any secret fault rendering it unfit for the purposes for which it is hired.
The contract of hire may call for the return of the thing or of like property of the same kind and quality. If the return of the thing is specified, the risk of death or inevitable accident is with the bailor and he can retake possession immediately at the expiration of the time of hiring. If the return of like property of the same kind and quality is specified, the risk is with the bailee and he must redeliver the thing hired before the bailor's interest is revested.
If either party violates the terms of the hiring, the other party may abandon the contract. If the hirer puts the thing to a different use than is specified in the contract, the bailor may bring an action as for a conversion even if the hirer is a minor.
The loss or destruction of the thing hired without fault on the part of the hirer puts an end to the bailment, and the hirer is required to pay only for the time it was enjoyed.
No hirer of a thing has a right to hire out the thing bailed to him to another person except with the consent, express or implied, of the bailor. If the hirer relets to another person without the consent of the bailor, the bailor may either take immediate possession of the thing bailed or waive this right and hold the hirer bound to extraordinary care and diligence on the part of himself and the hirer from him.
No hirer of things has a right to remove such things beyond the jurisdiction of this state except by consent of the bailor nor to put the thing hired to any hazardous use unless such use was specially contracted for.
For an interference with the possession of the thing hired, the right of action is in the hirer; for an injury to the property and for any interference with his property rights, the bailor has a right of action.
When the period of the hiring does not exceed one year, the thing hired shall not be subject to sale under a judgment against the owner of the thing which was obtained subsequent to the contract of hire; but the thing may be levied on and a bond for its delivery at the expiration of the time for which it is hired may be demanded of the hirer.
The hire of labor or services is the essence of every bailment in which goods are delivered to another and compensation is paid for the care, attention, or labor bestowed upon them. It includes the contracts of forwarding and commission merchants, factors, keepers of wharves, mechanics, and all agents in such transactions. In all such cases, the bailee is not only bound to exercise skill in the labor and work bestowed but it is a part of his contract that he shall exercise ordinary care and diligence in keeping and protecting the articles entrusted to him.
In cases of hire of labor or services, if the identical article, though materially changed by the labor bestowed, is to be returned, the title remains in the bailor. If the bailee furnishes a portion of the materials, the title to the entire structure is in the party furnishing the larger portion of the materials. If the bailor furnishes materials but the contract does not contemplate the use of that material specially, the title to the article constructed is in the bailee until it is delivered. If materials are furnished to the bailee for manufacture and the bailee and the bailor will each receive a share of the manufactured goods, the title remains in the bailor until the delivery to him of his portion of the manufactured goods.
The bailee for hire of labor and services is entitled to the possession of the thing bailed during the bailment.
If the thing bailed for labor and services is destroyed without fault on the part of the bailee, the loss falls upon the bailor; and the bailee may demand compensation for the labor expended and materials used upon it.
Since peculiar confidence is reposed in a factor, he may, in the absence of instructions, exercise his discretion according to the general usages of the trade. In return, greater and more skillful diligence and the most active good faith are required of him.
The keeper of a livery stable is a depository for hire and is bound to use the same diligence as an innkeeper.
The relationship of the owner of an automobile and the owner of the garage in which the automobile is stored is that of bailor and bailee. The bailee is bound to use ordinary care for the safekeeping and return of the automobile.
One who keeps a wharf is a depository for hire and is liable upon the same principles as a warehouseman.
As used in this part, the term:
(1) “Deposit” means the delivery of chattels by one person to another to keep for the use of the bailor.
(2) “Depository for hire” means a depository who receives or expects a reward or hire for undertaking to keep chattels for another.
(3) “Naked deposit” means an undertaking whereby a depository keeps chattels for another gratuitously.
A person may voluntarily undertake to be a depository or may become so involuntarily, as by finding chattels. For a naked deposit, the depository is responsible only for gross negligence.
Depositories for hire are bound to exercise ordinary care and diligence and are liable as in other cases of bailment for hire.
If one, in addition to safekeeping, undertakes gratuitously to carry money or other articles to another place, his liability is the same as that of a naked depository.
One who holds a naked deposit may at any time terminate the bailment by a redelivery of the chattels to the bailor.
One who holds a naked deposit may not use such deposit without increasing his responsibility unless the use is necessary to preserve the deposit or, from the circumstances, the consent of the depositor may be reasonably presumed.
One who holds a naked deposit is entitled to be reimbursed for all charges and expenses which he incurs by reason of the deposit, and he may retain possession of the deposit until such charges and expenses are paid.
Loans may be either for consumption or for use. A loan for consumption is a loan of an article which is not to be returned in specie, but in kind; this is a sale and not a bailment.
A loan for use is the gratuitous grant of an article to another for his use with the expectation that the article will be returned in specie. A loan for use may be made either for a definite time or for an indefinite time and is at the will of the grantor.
The borrower is usually bound to exercise extraordinary care and diligence and is liable for slight neglect.
A loan is generally entirely for the benefit of the borrower, but sometimes it is for the joint benefit of the lender and the borrower and occasionally it is for the exclusive benefit of the lender. Where the loan is for the joint benefit of the lender and the borrower or is for the exclusive benefit of the lender, the responsibility of the borrower is varied and less stringent according to the circumstances and purpose of the loan.
The borrower acquires no property right in the thing loaned but only the right to possess and use it. The borrower may bring an action for any interference with that right.
If a loan is for the personal benefit and use of the borrower, he cannot transfer the possession of the thing loaned to another without the consent, express or implied, of the lender. If the loan is for a definite time, the borrower has no such interest in the thing loaned as it may be subject to levy and sale.
The lender may not revoke a loan which is made for a definite time so long as the borrower meets fully his engagements with respect to such loan. A loan at will or a loan made for an indefinite time may be revoked at any time.
Since a loan is gratuitous, the borrower must pay all necessary charges and expenses in preserving and taking care of the property during the time of the loan. If, however, extraordinary expenses are necessary to protect the property from destruction, the lender must reimburse the borrower for such expenses.
The increase of loaned property, except property loaned by special contract, belongs to the lender.
The property loaned must be used strictly for the purpose and in the manner contemplated by the parties. A violation by the borrower is a conversion.
The death of the lender terminates all indefinite loans or loans at will or pleasure. It does not terminate a loan for a definite time. The death of the borrower terminates all loans to him.
As used in this part, the term:
(1) “Month” means that period of time from one date in a calendar month to the corresponding date in the following calendar month, but if there is no such corresponding date, then the last day of such following month.
(2) “Pawnbroker” means any person engaged in whole or in part in the business of lending money on the security of pledged goods, or in the business of purchasing tangible personal property on the condition that it may be redeemed or repurchased by the seller for a fixed price within a fixed period of time, or in the business of purchasing tangible personal property from persons or sources other than manufacturers or licensed dealers as a part of or in conjunction with the business activities described in this paragraph.
(3) “Pawn transaction” means any loan on the security of pledged goods or any purchase of pledged goods on the condition that the pledged goods may be redeemed or repurchased by the pledgor or seller for a fixed price within a fixed period of time.
(4) “Person” means an individual, partnership, corporation, joint venture, trust, association, or any other legal entity however organized.
(5) “Pledged goods” means tangible personal property, including, without limitation, all types of motor vehicles or any motor vehicle certificate of title, which property is purchased by, deposited with, or otherwise actually delivered into the possession of a pawnbroker in connection with a pawn transaction. However, for purposes of this Code section, possession of any motor vehicle certificate of title which has come into the possession of a pawnbroker through a pawn transaction made in accordance with law shall be conclusively deemed to be possession of the motor vehicle, and the pawnbroker shall retain physical possession of the motor vehicle certificate of title for the entire length of the pawn transaction but shall not be required in any way to retain physical possession of the motor vehicle at any time. “Pledged goods” shall not include choses in action, securities, or printed evidences of indebtedness.
(a)(1) All pawn transactions shall be for 30 day periods but may be extended or continued for additional 30 day periods.
(2) A pawnbroker shall not lease back to the seller or pledgor any motor vehicle during a pawn transaction or during any extension or continuation of the pawn transaction.
(3) Unless otherwise agreed, a pawnbroker has upon default the right to take possession of the motor vehicle. In taking possession, the pawnbroker or his agent may proceed without judicial process if this can be done without breach of the peace or may proceed by action.
(4)(A) During the first 90 days of any pawn transaction or extension or continuation of the pawn transaction, a pawnbroker may charge for each 30 day period interest and pawnshop charges which together equal no more than 25 percent of the principal amount advanced, with a minimum charge of up to $10.00 per 30 day period.
(B) On any pawn transaction which is continued or extended beyond 90 days, a pawnbroker may charge for each 30 day period interest and pawnshop charges which together equal no more than 12.5 percent of the principal amount advanced, with a minimum charge of up to $5.00 per 30 day period.
(C) In addition to the charges provided for in subparagraphs (A) and (B) of this paragraph, in a pawn transaction or in any extension or continuation of a pawn transaction involving a motor vehicle or a motor vehicle certificate of title, a pawnbroker may charge the following:
(i) A fee equal to no more than any fee imposed by the appropriate state to register a lien upon a motor vehicle title, but only if the pawnbroker actually registers such a lien;
(ii) No more than $5.00 per day in storage fees, but only if an actual repossession pursuant to a default takes place on a vehicle which was not already in the pawnbroker's possession and only for each day the pawnbroker must actually retain possession of the motor vehicle; and
(iii) A repossession fee of $50.00 within 50 miles of the office where the pawn originated, $100.00 within 51 to 100 miles, $150.00 within 101 to 300 miles and a fee of $250.00 beyond 300 miles, but only if an actual repossession pursuant to a default takes place on a vehicle which was not already in the pawnbroker's possession.
(D) If a pledgor or seller requests that the pawnbroker mail or ship the pledged item to the pledgor or seller, a pawnbroker may charge a fee for the actual shipping and mailing costs, plus a handling fee equal to not more than 50 percent of the actual shipping and mailing costs.
(E) In the event the pledgor or seller has lost or destroyed the original pawn ticket, a pawnbroker may, at the time of redemption, charge a fee equal to not more than $2.00.
(5) No other charge or fee of any kind by whatever name denominated, including but not limited to any other storage fee for a motor vehicle, shall be made by a pawnbroker except as set out in paragraph (4) of this subsection.
(6) No fee or charge provided for in this Code section may be imposed unless a disclosure regarding that fee or charge has been properly made as provided for in Code Section 44-12-138.
(7)(A) Any interest, fees, or charges collected which are undisclosed, improperly disclosed, or in excess of that allowed by this subsection may be recovered by the pledgor or seller in an action at law in any superior court of appropriate jurisdiction.
(B) In any such action in which the pledgor or seller prevails, the court shall also award reasonable attorneys' fees, court costs, and any expenses of litigation to the pledgor or seller.
(C) Before filing an action under this Code section, the pledgor or seller shall provide the pawnbroker with a written notice by certified mail or statutory overnight delivery, return receipt requested, that such an action is contemplated, identifying any fees or charges which the pledgor or seller contends are undisclosed, improperly disclosed, or in excess of the fees and charges allowed by this Code section. If the court finds that during the 30 days following receipt of this notice the pawnbroker made a good faith offer to return any excess, undisclosed, or improperly disclosed charges, the court shall award reasonable attorneys' fees, court costs, and expenses of litigation to the pawnbroker.
(D) No action shall be brought under this Code section more than two years after the pledgor or seller knew or should have known of the excess, undisclosed, or improperly disclosed charges.
(b) Any interest, charge, or fees contracted for or received, directly or indirectly, in excess of the amounts permitted under subsection (a) of this Code section shall be uncollectable and the pawn transaction shall be void. All interest and the pawnshop charge allowed under subsection (a) of this Code section shall be deemed earned, due, and owing as of the date of the pawn transaction and a like sum shall be deemed earned, due, and owing on the same day of the succeeding month.
Every pawnbroker shall maintain a permanent record book in which shall be entered in legible English at the time of each loan, purchase, or sale:
(1) The date of the transaction;
(2) The name of the person conducting the transaction;
(3) The name, age, and address of the customer; a description of the general appearance of the customer; and the distinctive number from the customer's driver's license or other similar identification card;
(4) An identification and description of the pledged or purchased goods, including, if reasonably available, the serial, model, or other number, and all identifying marks inscribed thereon;
(5) The number of the receipt or pawn ticket;
(6) The price paid or the amount loaned;
(7) If payment is made by check, the number of the check issued for the purchase price or loan;
(8) The maturity date of the transaction; and
(9) The signature of the customer.
Entries shall appear in ink and shall be in chronological order. No blank lines may be left between entries. No obliterations, alterations, or erasures may be made. Corrections shall be made by drawing a line of ink through the entry without destroying its legibility. The book shall be open to the inspection of any duly authorized law enforcement officer during the ordinary hours of business or at any reasonable time.
The record of each pawn or purchase transaction provided for in Code Sections 44-12-132 and 44-12-133 shall be maintained for a period of not less than four years.
Nothing in this part shall supersede existing local laws nor relieve a pawnbroker from the necessity of complying with them. The requirements of local laws shall be construed as cumulative to this part.
Municipal authorities may license pawnbrokers, define their powers and privileges by ordinance, impose taxes upon them, revoke their licenses, and exercise such general supervision as will ensure fair dealing between the pawnbroker and his customers.
(a) Any pawnbroker and any clerk, agent, or employee of such pawnbroker who shall:
(1) Fail to make an entry of any material matter in his permanent record book;
(2) Make any false entry therein;
(3) Falsify, obliterate, destroy, or remove from his place of business such permanent record book;
(4) Refuse to allow any duly authorized law enforcement officer who is certified by the Georgia Peace Officer Standards and Training Council or who is a federal officer to inspect his permanent record book or any goods in his possession during the ordinary hours of business or at any reasonable time;
(5) Fail to maintain a record of each pawn transaction for at least four years;
(6) Accept a pledge or purchase property from a person under the age of 18 years or who the pawnbroker knows is not the true owner of such property;
(7) Make any agreement requiring the personal liability of a pledgor or seller or waiving any of the provisions of this part or providing for a maturity date less than one month after the date of the pawn transaction; or
(8) Fail to return or replace pledged goods to a pledgor or seller upon payment of the full amount due the pawnbroker unless the pledged goods have been taken into custody by a court or a law enforcement officer or agency,
shall be guilty of a misdemeanor.
(b) Any person properly identifying himself and presenting a pawn ticket to the pawnbroker shall be presumed to be the pledgor or seller and shall be entitled to redeem the pledged goods described in such ticket. In the event such pledged goods are lost or damaged while in the possession of the pawnbroker, it shall be the responsibility of the pawnbroker to replace the lost or damaged goods with like kinds of merchandise and proof of replacement shall be a defense to prosecution. For the purposes of this subsection, “lost” includes destroyed or having disappeared because of any cause, whether known or unknown, that results in the pledged goods being unavailable for return to the pledgor.
(a)(1) Any pawnbroker as defined in paragraph (2) of Code Section 44-12-130 shall include most prominently in any and all types of advertisements the word “pawn” or the words “pawn transaction.” A pawnbroker shall not use the term “loan” in any advertisements or in connection with any advertising of the business of the pawnbroker; provided, however, that the provisions of this sentence shall not apply to a pawnbroker in business on March 1, 1992, which uses the term “loan” in connection with the name of the business or with advertising of the business.
(2) On any sign advertising a pawnbroker's business, the words on such sign shall be in at least 24 inch high letters. On any other sign on the property where the pawnbroker's business is located which advertises any other activities or business engaged in by the person who is a pawnbroker, the words on such sign shall be in 12 inch high letters or smaller; provided, however, that the provisions of this paragraph shall not apply to signs of pawnbrokers which signs are in existence on March 1, 1992.
(b) Every pawnbroker in every pawn transaction shall present the pledgor or seller with a written disclosure ticket or statement in at least nine-point type, appropriately completed, with no other written or pictorial matter except as provided in subsection (c) of this Code section, containing the following information:
(1) Information identifying the pawnbroker by name and address;
(2) A statement as follows:
“This is a pawn transaction. Failure to make your payments as described in this document can result in the loss of the pawned item. The pawnbroker can sell or keep the item if you have not made all payments by the specified maturity date.”;
(3) If the pawned item is a motor vehicle or motor vehicle certificate of title, a statement as follows:
“Failure to make your payment as described in this document can result in the loss of your motor vehicle. The pawnbroker can also charge you certain fees if he or she actually repossesses the motor vehicle.”;
(4) A statement that the length of the pawn transaction is 30 days and that it can only be renewed with the agreement of both parties and only for 30 day incremental periods;
(5) The annual percentage rate, computed in accordance with the federal Truth in Lending Act 1 and regulations under the federal Truth in Lending Act, for the first 30 days of the transaction, computed as if all interest and pawnshop charges were considered to be interest;
(6) The annual percentage rate, computed in accordance with the federal Truth in Lending Act and regulations under the federal Truth in Lending Act, for each 30 day period in which the pawn transaction might be continued or extended, computed as if all interest and pawnshop charges were considered to be interest. For purposes of identifying the annual percentage rate after the second continuation or extension, a single statement which identifies an annual percentage rate for each possible 30 day period thereafter shall meet the requirements of this Code section;
(7) A statement in dollar amounts of how much it will cost the seller or pledgor to redeem the merchandise in the first 30 day period of the transaction;
(8) A statement in dollar amounts of how much it will cost the seller or pledgor to redeem the merchandise in any 30 day period after the first 30 day period of the pawn transaction, provided that all fees and charges have been kept current;
(9) A statement of the specific maturity date of the pawn transaction;
(10) A statement of how long, the grace period, the pledged goods may be redeemed after the specific maturity date and the dollar amount which will be required to redeem the pledged goods after the specific maturity date;
(11) A statement that after the grace period the pledged goods become the property of the pawnbroker;
(12) If the pawn transaction involves a motor vehicle or motor vehicle certificate of title, a statement that the pawnbroker may not charge a storage fee for the motor vehicle unless the pawnbroker repossesses the motor vehicle pursuant to a default;
(13) If the pawn transaction involves a motor vehicle or motor vehicle certificate of title, a statement that the pawnbroker may charge a storage fee for a repossessed motor vehicle not to exceed $5.00 per day, but only if the pawnbroker actually repossesses and actually must store the motor vehicle;
(14) If the pawn transaction involves a motor vehicle or motor vehicle certificate of title, a statement that the pawnbroker may charge a repossession fee, not to exceed $50.00, but only if the pawnbroker actually repossesses the motor vehicle;
(15) If the pawn transaction involves a motor vehicle or motor vehicle certificate of title, a statement that the pawnbroker may charge a fee to register a lien upon the motor vehicle certificate of title, not to exceed any fee actually charged by the appropriate state to register a lien upon a motor vehicle certificate of title, but only if the pawnbroker actually places such a lien upon the motor vehicle certificate of title;
(16) A statement that any costs to ship the pledged items to the pledgor or seller can be charged to the pledgor or seller, along with a handling fee to equal no more than 50 percent of the actual costs to ship the pledged items; and
(17) A statement that a fee of up to $2.00 can be charged for each lost or destroyed pawn ticket.
(c) In addition to the information required by subsection (b) of this Code section, the pawnbroker may, but is not required to, include the following information on the same disclosure ticket or statement, provided that such information is not used to obscure or obfuscate the information required by subsection (b) of this Code section:
(1) Information identifying the pledgor or seller;
(2) Any logo which the pawnbroker may desire to use;
(3) Any numbers or characters necessary for the pawnbroker to identify the merchandise or goods associated with the pawn transaction;
(4) Any other information required to be disclosed to consumers by any other law, rule, or regulation of the United States or of the State of Georgia;
(5) Information identifying or describing the pledged item;
(6) Information which is only for the internal business use of the pawnbroker;
(7) The hours of operation of the pawnbroker;
(8) The time of day of the pawn transaction; and
(9) Any agreement between the pledgor or seller and the pawnbroker which does not controvert the provisions of this part, of Part 5 of Article 8 of Chapter 14 of this title, or of Part 2 of Article 15 of Chapter 1 of Title 10.
(d) The pawnbroker shall have the pledgor or seller sign the disclosure statement and shall furnish a completed copy to the pledgor or seller. The pawnbroker shall maintain a completed and signed copy of the disclosure statement on file for two years subsequent to the maturity date of the pawn transaction. Failure to maintain such a copy shall be conclusive proof that the pawnbroker did not furnish such a statement to the pledgor or seller.
(e) Notwithstanding anything to the contrary contained elsewhere in this Code section, no municipality or local government may impose any requirements upon a pawnbroker regarding the disclosures which must be made to a pledgor or seller or which must be made in the pawn ticket, other than those requirements contained in this Code section.
1 15 U.S.C.A. § 1601 et seq.
In actions to recover the possession of chattels, it shall not be necessary to prove any conversion of the property if the defendant is in possession when the action is brought.
In an action to recover personal property, the plaintiff may elect:
(1) To accept an alternative verdict for the property or for its value;
(2) To demand a verdict for the damages alone; or
(3) To demand a verdict for the property alone and its hire, if any.
It shall be the duty of the court to instruct the jury to render the verdict as the plaintiff elects.
For personalty unlawfully detained, the plaintiff may recover a sum in the amount of the highest value which he is able to prove existed between the time of the conversion and the trial.
In actions for the recovery of personal property, if the defendant disclaims all title and tenders the property to the plaintiff when he files his answer, together with reasonable hire for the same since the conversion, the costs of the action shall be paid by the plaintiff unless he proves a previous demand of the defendant and a refusal to deliver.
When personal property is sold and the vendor retains the title until all the purchase money is paid, if the vendor or his assigns shall bring an action to recover the possession of such personal property, the defendant in the action may plead as a setoff any demand or claim that he may have against the plaintiff or may recoup any damages that he has sustained by reason of any failure of consideration, any defects in the personal property, or any breach of contract by the plaintiff whereby the defendant has in any way been injured or damaged. If the plaintiff elects to take a money judgment for the value of the property, the amount of the setoff or damages allowed the defendant by the jury shall be deducted from the value of the property and the amount allowed for the hire or use thereof and the plaintiff shall only recover the excess; but, if the amount of the setoff or damages allowed the defendant shall exceed the value of the property and the hire thereof, the defendant shall have judgment against the plaintiff for such excess. If the plaintiff elects to take a judgment for the property, the amount allowed the defendant as the setoff or damages shall be a lien on such property superior to all other liens except liens for taxes.
An alternative verdict in an action of trover vests the title to the property in the plaintiff to the extent that until the judgment is paid by the defendant such judgment shall constitute the first lien on the property to the exclusion of all other claims whatsoever.
When a verdict for damages is rendered in favor of a plaintiff in trover and a judgment is entered thereon, the verdict and judgment shall not have the effect of changing the property which is the subject matter of the action or of vesting the same in the defendant in the action until after the damages and costs recovered by the plaintiff in the action are paid off and discharged. However, the verdict and judgment shall subject the property to sale under and by virtue of an execution issuing upon the judgment in the action of trover and shall make the property liable to the payment of the damages and costs recovered in the action in preference to any other judgment, order, or decree against the defendant in such action.
Pending a trover action, the death or destruction of or material injury to the property in dispute shall be no defense to a mere wrongdoer. If the defendant is a bona fide claimant and the injury arises from an act of God and is in no way the result of the defendant's conduct, the jury may take the death, destruction, or material injury of the property into consideration; but in no case shall such an event cast the costs upon the plaintiff.
In an action of trover or bail trover where the principal amount is $100.00 or less or where the value of the property sought to be recovered is $100.00 or less, the costs in such an action of trover or bail trover in the trial court shall be $5.00 which shall be equally divided to cover the services of the clerk of the court and the sheriff; provided, however, that the sheriff may also collect the additional amount of costs as provided by law for serving subpoenas upon witnesses; and provided, further, that clerks of the superior courts shall be entitled to receive the same fees as in other civil cases for performing the duties required of them in cases of trover or bail trover regardless of the amount involved in such cases of trover or bail trover.
Whenever any officer has taken possession of any property under process in any case of trover and the property remains in the hands of the officer because neither the plaintiff nor the defendant replevies the property, if the property is of a perishable nature or liable to deterioration from keeping or if there is expense involved in keeping the property, the property may be sold under Code Section 9-13-163; provided, however, if the property is sold, the plaintiff, in case of recovery, shall be entitled only to a money verdict for the amount of the proceeds of such sale together with any hire or interest from the date of conversion to the date of seizure found by the jury.
When the plaintiff in a trover action has replevied the property and on the trial of the case fails to recover or dismisses his petition, the defendant may recover the property and its hire or the sworn value placed upon the property in the petition instead of suing on the replevy bond.
This article shall be known and may be cited as the “Disposition of Unclaimed Property Act.”
This article shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
<Text of section effective until July 1, 2024. See, also, text of section 44-12-192 effective July 1, 2024.>
As used in this article, the term:
(1) “Apparent owner” means the person whose name appears on the records of the holder as the person entitled to property held, issued, or owing by the holder.
(2) “Banking organization” means a bank, trust company, savings bank, industrial bank, land bank, safe-deposit company, private banker, or any other organization defined by federal law or the law of another state as a bank or banking organization.
(3) “Business association” means any corporation, other than a public corporation, a joint-stock company, an investment company, a business trust, or a partnership or association for business purposes of two or more individuals whether or not for profit, including a banking organization, financial organization, insurance company, or utility.
(4) “Commissioner” means the commissioner of revenue.
(5) “Domicile” means the state of incorporation, in the case of a corporation incorporated under the laws of a state, and the state of the principal place of business, in the case of a person not incorporated under the laws of a state.
(6) “Due diligence” means, but shall not be limited to, the mailing of a letter by first-class mail to the last known address of the owner as indicated on the records of the holder.
(7) “Financial organization” means any savings and loan association, cooperative bank, building and loan association, or credit union.
(8) “Holder” means a person, wherever organized or domiciled, who is:
(A) In possession of property belonging to another;
(B) A trustee in case of a trust; or
(C) Indebted to another on an obligation.
(9) “Insurance company” means an association, corporation, or fraternal or mutual benefit organization, whether or not for profit, which is engaged in providing insurance coverage of any type.
(10) “Intangible property” means and includes:
(A) Moneys, checks, drafts, deposits, interest, dividends, and income;
(B) Credit balances, customer overpayments, gift certificates, security deposits, refunds, credit memos, unpaid wages, and unidentified remittances;
(C) Stocks and other intangible ownership interests in business associations;
(D) Moneys deposited to redeem stocks, bonds, coupons, and other securities or to make distributions;
(E) Amounts due and payable under the terms of insurance policies; and
(F) Amounts distributable from a trust or custodial fund established under a plan to provide health, welfare, pension, vacation, severance, retirement, death, stock purchase, profit sharing, employee savings, supplemental unemployment insurance, or similar benefits.
(11) “Last known address” means a description of the location of the apparent owner sufficient for the purpose of the delivery of mail.
(12) “Owner” means a depositor in the case of a deposit, a beneficiary in the case of a trust other than a deposit in trust, a creditor, claimant, or payee in the case of other intangible property, or a person having a legal or equitable interest in property subject to this article or his legal representative.
(13) “Payable” means the earliest date upon which the owner of property could become entitled to the payments, possession, delivery, or distribution of such property from a holder.
(14) “Person” means an individual, business association, government, governmental subdivision or agency, public corporation, public authority, estate, trust, two or more persons having a joint or common interest, or any other legal or commercial entity.
(15) “State” means any state, district, commonwealth, territory, insular possession, or any other area subject to the authority of the United States.
(16) “Utility” means a person who owns or operates for public use any plant, equipment, property, franchise, or license for the transmission of communications or the production, storage, transmission, sale, delivery, or furnishing of electricity, water, steam, or gas.
Except as provided in Article 17B of Title 10, all tangible and intangible property, including any income or increment thereon, less any lawful charges, that is held, issued, or owing in the ordinary course of the holder's business and has remained unclaimed by the owner for more than five years after it became payable or distributable is presumed abandoned, except as otherwise provided by this article. Property is payable or distributable for the purpose of this article notwithstanding the owner's failure to make demand or to present any instrument or document required to receive payment.
Unless otherwise provided in this article or by any other provision of law, intangible property is subject to the custody of this state as unclaimed property if the conditions leading to a presumption of abandonment as described in Code Section 44-12-193 are satisfied and:
(1) The last known address, as shown on the records of the holder, of the apparent owner is in this state;
(2) The records of the holder do not reflect the identity of the person entitled to the property and it is established that the last known address of the person entitled to the property is in this state;
(3) The records of the holder do not reflect the last known address of the apparent owner, and it is established that:
(A) The last known address of the person entitled to the property is in this state; or
(B) The holder is a domiciliary or a government or governmental subdivision or agency of this state and has not previously paid the property to the state of the last known address of the apparent owner or other person entitled to the property;
(4) The last known address, as shown on the records of the holder, of the apparent owner or other person entitled to the property is in a state that does not provide by law for the escheat or custodial taking of the property or its escheat or unclaimed property law is not applicable to the property and the holder is a domiciliary or a government or governmental subdivision or agency of this state;
(5) The last known address, as shown on the records of the holder, of the apparent owner is in a foreign nation and the holder is a domiciliary or a government or governmental subdivision or agency of this state; or
(6) The transaction out of which the property arose occurred in this state and:
(A) The last known address of the apparent owner or other person entitled to the property is unknown; or
(B) The last known address of the apparent owner or other person entitled to the property is in a state that does not provide by law for the escheat or custodial taking of the property or its escheat or unclaimed property law is not applicable to the property; and
(C) The holder is a domiciliary of a state that does not provide by law for the escheat or custodial taking of the property or its escheat or unclaimed property law is not applicable to the property.
(a) Except as otherwise provided in this Code section, any sum payable on a traveler's check that has been outstanding for more than 15 years after its issuance is presumed abandoned unless the owner, within 15 years, has communicated in writing with the issuer concerning it or otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by an employee of the issuer.
(b) Except as otherwise provided in this Code section, any sum payable on a money order or similar written instrument, other than a third-party bank check, that has been outstanding for more than seven years after its issuance is presumed abandoned unless the owner, within seven years, has communicated in writing with the issuer concerning it or otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by an employee of the issuer.
(c) Any sum payable on a traveler's check, money order, or similar written instrument, other than a third-party bank check, described in this Code section may not be subjected to the custody of this state as unclaimed property unless:
(1) The records of the issuer show that the traveler's check, money order, or similar written instrument was purchased in this state;
(2) The issuer has its principal place of business in this state and the records of the issuer do not show the state in which the traveler's check, money order, or similar written instrument was purchased; or
(3) The issuer has its principal place of business in this state, the records of the issuer show the state in which the traveler's check, money order, or similar written instrument was purchased, and the laws of the state of purchase do not provide for the escheat or custodial taking of the property or its escheat or unclaimed property law is not applicable to the property.
(d) Notwithstanding any other provision of this article, the provisions of subsection (c) of this Code section relating to the requirements for subjecting certain written instruments to the custody of the state shall apply to sums payable on traveler's checks, money orders, and similar written instruments presumed abandoned on or after February 1, 1965, except to the extent that those sums have been paid over to a state prior to January 1, 1973.
Any sum payable on a check, draft, or similar instrument, except money orders, traveler's checks, and other similar instruments subject to Code Section 44-12-195, on which a banking or financial organization is directly liable, including but not limited to, cashier's checks and certified checks, which has been outstanding for more than five years after it was payable or after its issuance if payable on demand, is presumed abandoned unless the owner, within five years, has communicated in writing with the banking or financial organization concerning it or otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by an employee of the banking or financial organization. Except for charges imposed with respect to issuance, no banking or financial organization shall deduct a service charge from, or otherwise impose a service charge on, any instrument described in this Code section unless such instrument is not presented for payment within two years of the date of issuance. Service charges may be imposed for each month of the 12 months following such two-year period.
(a) Any demand, savings, or matured time deposit with a banking or financial organization, including deposits that are automatically renewable, and any funds paid toward the purchase of a share, a mutual investment certificate, or any other interest in a banking or financial organization is presumed abandoned unless the owner, within five years, has:
(1) In the case of a deposit, increased or decreased its amount or presented the passbook or other similar evidence of the deposit for the crediting of interest or negotiated a check in payment of interest on a time deposit;
(2) Communicated in writing with the banking or financial organization concerning the property;
(3) Otherwise indicated an interest in the property as evidenced by a memorandum or other record on file prepared by an employee of the banking or financial organization; for purposes of this paragraph, a record of the sending of a federal Internal Revenue Service Form 1099, or its equivalent, to the persons enumerated in this subsection and a record of its not being returned by the United States Postal Service or its successor shall be an indication of interest;
(4) Owned other property to which paragraph (1), (2), or (3) of this subsection is applicable if the banking or financial organization communicated in writing with the owner with regard to the property that would otherwise be presumed abandoned under this paragraph at the address to which communications regarding the other property regularly are sent;
(5) Had another relationship with the banking or financial organization concerning which the owner has communicated in writing with the banking or financial organization or has otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by an employee of the banking or financial organization if the banking or financial organization communicates in writing with the owner with regard to property that would otherwise be abandoned under this paragraph at the address to which communications regarding the other relationship regularly are sent; or
(6) A deposit made with a banking or financial organization by a court or by a guardian pursuant to order of a court or by any other person for the benefit of a person who was a minor at the time of the making of such deposit, which deposit is subject to withdrawal only upon the further order of such court or such guardian or other person, shall not be subject to the provisions of this article until one year after such minor attains the age of 18 years or until one year after the death of such minor, whichever occurs sooner. These accounts are not subject to dormant service charges.
(b) For purposes of this Code section, “property” includes any interest or dividends thereon. No banking or financial organization shall deduct a service charge from any account on which there has been no deposit or withdrawal for 12 or more months or otherwise impose a service charge on any such account. A service charge may be imposed for 12 months immediately following a deposit to or withdrawal from any such account.
(c) No banking or financial organization may cease to accrue interest on any account from the date the account is declared dormant or inactive by such organization except in conformity with cessation of interest generally assessed upon active accounts. With respect to any property described in this subsection, a holder may not impose any charges due to dormancy or inactivity which differ from those imposed on active accounts or cease to pay interest unless:
(1) For property in excess of $50.00, the holder, no more than three months before the initial imposition of those charges or cessation of interest, has given written notice to the owner of the amount of those charges at the last known address of the owner stating that those charges will be imposed or that interest will cease, but the notice provided in this paragraph need not be given with respect to charges imposed or interest ceased before July 1, 1990; and
(2) The holder regularly imposes such charges or ceases payment of interest and does not regularly reverse or otherwise cancel them or retroactively credit interest with respect to such property.
(d) Any automatically renewable property to which this Code section applies is matured upon the expiration of its initial time period. However, in the case of any renewal to which the owner consents at or about the time of renewal by communicating in writing with the banking or financial organization or otherwise indicates consent as specified in subsection (a) of this Code section, the property is matured upon the expiration of the last time period for which consent was given. If, at the time provided for delivery in subsection (e) of Code Section 44-12-214, a penalty or forfeiture in the payment of interest would result from the delivery of the property, the time for delivery is extended until the time when no penalty or forfeiture would result.
(a) Funds held or owing under any life or endowment insurance policy or annuity contract which has matured or terminated are presumed abandoned if unclaimed for more than five years after the funds became due and payable as established from the records of the insurance company holding or owing the funds, except that property described in paragraph (2) of subsection (c) of this Code section is presumed abandoned if unclaimed for more than two years.
(b) If a person other than the insured or annuitant is entitled to the funds and no address of the person is known to the company or it is not definite and certain from the records of the company who is entitled to the funds, it is presumed that the last known address of the person entitled to the funds is the same as the last known address of the insured or annuitant according to the records of the company.
(c) For purposes of this Code section, a life or endowment insurance policy or annuity contract not matured by actual proof of the death of the insured or annuitant according to the records of the company is deemed matured and the proceeds due and payable if:
(1) The company knows that the insured or annuitant has died; or
(2) If all of the following conditions are met:
(A) The insured has attained, or would have attained if he were living, the limiting age under the mortality table on which the reserve is based;
(B) The policy was in force at the time the insured attained, or would have attained, the limiting age specified in subparagraph (A) of this paragraph; and
(C) Neither the insured nor any other person appearing to have an interest in the policy within the preceding two years, according to the records of the company concerning the policy or otherwise, indicated an interest as evidenced by a memorandum or other record on file prepared by an employee of the company.
(d) For purposes of this Code section, the application of an automatic premium loan provision or other nonforfeiture provision contained in an insurance policy does not prevent a policy from being matured or terminated under subsection (a) of this Code section if the insured has died or the insured or the beneficiaries of the policy otherwise have become entitled to the proceeds thereof before the depletion of the cash surrender value of a policy by the application of that provision.
(e) Notwithstanding any other provisions of law, if the company learns of the death of the insured or annuitant and the beneficiary has not communicated with the insurer within four months after the death, the company shall take reasonable steps to locate the beneficiary and pay the proceeds to the beneficiary.
(f) On and after January 1, 1991, every change of beneficiary form issued by an insurance company under any life or endowment insurance policy or annuity contract to an insured or owner who is a resident of this state must request the following information:
(1) The name of each beneficiary or, if a class of beneficiaries is named, the name of each current beneficiary in the class;
(2) The address of each beneficiary; and
(3) The relationship of each beneficiary to the insured.
The following funds held or owing by any utility are presumed abandoned:
(1) Any deposit made by a subscriber with a utility to secure payment for or any sum paid in advance for utility services to be furnished in this state, less any lawful deductions, that has remained unclaimed by the person appearing on the records of the utility entitled thereto for more than five years after the termination of the services for which the deposit or advance payment was made; and
(2) Any sum which a utility has been ordered to refund and which was received for utility services rendered in this state, together with any interest thereon, less any lawful deductions, that has remained unclaimed by the person appearing on the records of the utility entitled thereto for more than five years after the date it became payable in accordance with the final determination or order providing for the refund unless the regulatory body having jurisdiction over the utility has provided by order for a different disposition of such unclaimed funds.
Except to the extent otherwise ordered by a court or administrative agency of competent jurisdiction, any sum that a business association has been ordered to refund by a court or administrative agency which has remained unclaimed by the owner for more than five years after it became payable in accordance with the final determination or order providing for the refund, regardless of whether the final determination or order requires any person entitled to a refund to make a claim for it, is presumed abandoned.
(a) Pursuant to Code Section 44-12-193, any dividend, profit, distribution, interest, payment on principal, or other sum held or owing by a business association for or to its shareholder, certificate holder, member, bondholder, or other security holder, or a participating patron of a cooperative, who has not claimed it, corresponded in writing concerning it, or otherwise indicated an interest as evidenced by a memorandum or other record on file with the association within five years after the date prescribed for payment or delivery is presumed abandoned.
(b)(1) Pursuant to Code Section 44-12-193, any intangible interest in a business association, as evidenced by the stock records or membership records of the association, is presumed abandoned if the interest in the association is owned by a person who for more than five years has neither claimed a dividend or other sum referred to in subsection (a) of this Code section nor corresponded in writing with the association and the association does not know the location of the owner at the end of such five-year period. With respect to such interest, the business association shall be deemed the holder.
(2) All intangible property, including but not limited to securities, principal, interest, dividends, or other earnings thereon, less any lawful charges, held by a business association; federal, state, or local government or governmental subdivision, agency, or entity; or any other person or entity, regardless of where the holder may be found, if the owner has not claimed such property or corresponded in writing with the holder concerning the property within five years after the date prescribed for payment or delivery by the issuer unless the holder is a state that has taken custody pursuant to its own unclaimed property laws, in which case no additional period of holding beyond that of such state is necessary pursuant to this subsection, is presumed abandoned and subject to the custody of this state as unclaimed property if:
(A) The last known address of the owner is unknown; and
(B) The person or entity originating or issuing the intangible property is this state or any political subdivision of this state or is incorporated, organized, created, or otherwise located in this state.
(3) The provisions of paragraph (2) of this subsection shall not apply to property which is or may be presumed abandoned and subject to the custody of this state pursuant to any other provision of law containing a dormancy period different from that prescribed in paragraph (2) of this subsection.
(4) The provisions of this subsection shall apply to all property held on April 13, 1992, or at any time thereafter, regardless of when such property became or becomes presumptively abandoned.
(c) Pursuant to Code Section 44-12-193, any dividends or other distributions held for or owing to a person at the time the stock or other security to which they attach are presumed abandoned also shall be presumed abandoned as of the same time.
(d) For the purposes of subsections (a) and (b) of this Code section, a record of the sending of a federal Internal Revenue Service Form 1099, or its equivalent, to the persons enumerated in those subsections and a record of its not being returned by the United States Postal Service, or its successor, shall be an indication of interest.
All property distributable in the course of a voluntary or involuntary dissolution or liquidation of a person that remains unclaimed by the person entitled thereto, within one year after the date of final distribution or liquidation, shall be presumed abandoned.
(a) Intangible property and any income or increment derived therefrom held in a fiduciary capacity for the benefit of another person is presumed abandoned unless the owner, within five years after it has become payable or distributable, has increased or decreased the principal, accepted payment of principal or income, communicated concerning the property, or otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by the fiduciary.
(b) Funds in an individual retirement account or a retirement plan for self-employed individuals or similar account or plan established pursuant to the internal revenue laws of the United States are not payable or distributable within the meaning of subsection (a) of this Code section unless, under the terms of the account or plan, distribution of all or part of the funds would then be mandatory.
(c) For the purpose of this Code section, a person who holds property as an agent for a business association is deemed to hold the property in a fiduciary capacity for a business association alone, unless the agreement between him and the business association provides otherwise.
(d) For the purposes of this article, a person who is deemed to hold property in a fiduciary capacity for a business association alone is the holder of the property only insofar as the interest of the business association in the property is concerned, and the business association is the holder of the property insofar as the interest of any other person in the property is concerned.
All intangible property held for the owner by any state or federal court, government, governmental subdivision or agency, public corporation, or public authority which remains unclaimed by the owner for more than five years after becoming payable or distributable is presumed abandoned.
(a) A gift certificate or a credit memo issued in the ordinary course of an issuer's business which remains unclaimed by the owner for more than five years after becoming payable or distributable is presumed abandoned.
(b) In the case of a gift certificate, the amount presumed abandoned is the price paid by the purchaser for the gift certificate. In the case of a credit memo, the amount presumed abandoned is the amount credited to the recipient of the memo.
Unpaid wages, including wages represented by unpresented payroll checks owing in the ordinary course of the holder's business, that have remained unclaimed by the owner for more than one year after becoming payable are presumed abandoned.
(a) All employee benefit trust distributions and any income or other increment thereon are abandoned to this state under the provisions of this article if the owner has not, within five years after it becomes payable or distributable, accepted such distribution, corresponded in writing concerning such distribution, or otherwise indicated an interest as evidenced by a memorandum or other record on file with the fiduciary of the trust or custodial fund or administrator of the plan under which such trust or fund is established.
(b) An employee benefit trust distribution and any income or other increment thereon shall not be presumed abandoned to this state under the provisions of this article if, at the time such distribution shall become payable to a participant in an employee benefit plan, such plan contains a provision for forfeiture, if the trustees of an employee benefit plan supported wholly or partially from public funds adopt a provision for forfeiture, or if such plan expressly authorizes the trustee to declare a forfeiture of a distribution to a beneficiary thereof who cannot be found after a period of time specified in such plan, and the trust or fund established under the plan has not terminated prior to the date on which such distribution would become forfeitable in accordance with such provision.
(a) Any funds held or owing by a fire, casualty, or any other insurer or surety as defined in Title 33 or a hospital, medical, or dental service corporation organized under Title 31 that are due and payable, as established from the records of the insurer or surety either to an insured, a principal, or other claimant under any insurance policy or contract shall be presumed abandoned if they have not been claimed or paid within five years after becoming due or payable. Funds payable according to the insurer's or surety's records are deemed due and payable although the policy or contract has not been surrendered as required.
(b) If a person other than the insured, the principal, or the claimant is entitled to the funds and no address of the person is known to the insurer or surety or if it is not definite and certain from the records of the insurer or surety what person is entitled to the funds, it is presumed that the last known address of the person entitled to the funds is the same as the last known address of the insured, the principal, or the claimant according to the records of the insurer or surety.
(c) Any sum for the payment of a claim under an insurance policy or contract, which sum is payable on a negotiable instrument on which the insurer is the maker or drawer shall be presumed abandoned if, within five years from the date payable, or from the date of issuance, if payable on demand, the owner has not:
(1) Negotiated the instrument;
(2) Corresponded in writing with the insurer concerning it; or
(3) Otherwise indicated an interest by a writing on file with the insurer.
<Text of section effective until July 1, 2024. See, also, text of section 44-12-209 effective July 1, 2024.>
(a) If the rental due on a safe-deposit box has not been paid for one year, the lessor shall send a notice by registered mail or statutory overnight delivery to the last known address of the lessee stating that the safe-deposit box will be opened and its contents stored at the expense of the lessee unless payment of the rental is made within 30 days. If the rental is not paid within 30 days from the mailing of the notice, the holder shall provide written notification to the commissioner of the drilling date not less than 30 days prior to this time. The commissioner may designate a representative to be present during the opening of the safe-deposit box. The safe-deposit box shall be opened in the presence of an officer of the lessor. The contents shall be sealed in a package by the officer who shall write on the outside the name of the lessee and the date of the opening. The officer shall execute a certificate reciting the name of the lessee, the date of the opening of the safe-deposit box, and a list of its contents. The certificate shall be included in the package and a copy of the certificate shall be sent by registered mail or statutory overnight delivery to the last known address of the lessee. The package shall then be placed in the general vaults of the lessor at a rental not exceeding the rental previously charged for the safe-deposit box.
(b) If the contents of the safe-deposit box have not been claimed within two years of the mailing of the certificate, the lessor may send a further notice to the last known address of the lessee stating that, unless the accumulated charges are paid within 30 days, the contents of the safe-deposit box will be delivered to the commissioner as abandoned property under the provisions of Code Section 44-12-214.
(c) The lessor shall submit to the commissioner a verified inventory of all of the contents of the safe-deposit box upon delivery of the contents of the safe-deposit box or such part thereof as shall be required by the commissioner under Code Section 44-12-214, but the lessor shall not deduct from any cash of the lessee in the safe-deposit box an amount equal to accumulated charges for rental but shall submit to the commissioner a verified statement of such charges and deductions. If there is no cash, or insufficient cash to pay accumulated charges, in the safe-deposit box, the commissioner shall remit to the lessor the charges or balance due, up to the value of the property in the safe-deposit box delivered to him, less any costs or expenses of sale; but, if the charges or balance due exceeds the value of such property, the commissioner shall remit only the value of the property, less costs or expenses of sale. Any accumulated charges for safe-deposit box rental paid by the commissioner to the lessor shall be deducted from the value of the property of the lessee delivered to the commissioner.
(d) On and after January 1, 1991, a copy of this Code section shall be printed on every contract for rental of a safe-deposit box.
The abandonment period of any property described in Code Section 44-12-197 that is automatically renewable shall commence upon the expiration of its initial time period except that, in the case of any renewal to which the owner consents at or about the time of renewal by communicating in writing with the person holding the property or otherwise indicating such consent as evidenced by a memorandum on file prepared by an employee, the abandonment period shall commence upon the expiration of the last time period for which consent was given.
(a) Property which has been bequeathed to any person shall be presumed abandoned if not claimed by that person or his heirs, legatees, or distributees within five years after the death of the testator unless the will makes provision in case of a lapse, failure, or rejection of the bequest for the disposition of the property.
(b) When a person owning property is not known for five successive years to be living and neither the person named, his heirs, or distributees can be located or proved for five successive years to have been living, he shall be presumed to have died without heirs or distributees and his property shall be presumed abandoned.
(a) Within 15 days of the sale of a motor vehicle pursuant to Article 1A of Chapter 11 of Title 40, “The Abandoned Motor Vehicle Act,” and the satisfaction of the amounts owed for liens on such motor vehicle, any towing and storage firm, repair facility, or salvage dealer selling such motor vehicle shall provide to the commissioner any excess funds minus the allowable costs incurred for the public sale of such motor vehicle as set forth in subsection (b) of Code Section 40-11-19.2. The funds turned over to the department shall be accompanied by copies of the court order issued pursuant to Code Section 40-11-19.1, the bill of sale, and the receipt for the costs associated with the sale held pursuant to Code Section 40-11-19.2 on a form prescribed by the department for such purpose.
(b)(1) Any person claiming a property interest in the motor vehicle sold pursuant to Article 1A of Chapter 11 of Title 40, “The Abandoned Motor Vehicle Act,” and the excess funds from such sale may make such claim to the department upon a form provided for such purpose through rule or regulation within six months of the sale.
(2) If such excess funds remain unclaimed for more than six months, any person authorized to make a claim under paragraph (1) of this subsection, or the towing and storage firm, repair facility, or salvage dealer selling such motor vehicle, may make a claim to the department for such excess funds. If more than one claim is made during this six-month period, the party first making a claim determined by the department as authorized shall be entitled to the excess funds. No claim shall be authorized after one year from the date excess funds are provided to the commissioner.
(c) For purposes of this Code section, the terms “repair facility,” “salvage dealer,” and “towing and storage firm” shall have the same meanings as provided for in Code Section 40-11-13.
If specific property which is subject to the provisions of Code Section 44-12-193 is held for or owed or distributable to an owner whose last known address is in another state by a holder who is subject to the jurisdiction of that state, the specific property is not presumed abandoned in this state and subject to this article if:
(1) It may be claimed as abandoned or escheated under the laws of such other state; and
(2) The laws of such other state make reciprocal provision that similar specific property is not presumed abandoned or escheatable by such other state when held for or owed or distributable to an owner whose last known address is within this state by a holder who is subject to the jurisdiction of this state.
(a) The commissioner may enter into agreements with other states to exchange information needed to enable this or another state to audit or otherwise determine unclaimed property that is subject to a claim of custody. The commissioner by rule may require the reporting of information needed to enable compliance with agreements made pursuant to this Code section and may prescribe the form.
(b) To avoid conflicts between the commissioner's procedures and the procedures of administrators in other jurisdictions that enact the Uniform Unclaimed Property Act, the commissioner, so far as is consistent with the purposes, policies, and provisions of this article, before adopting, amending, or repealing rules, shall advise and consult with administrators in other jurisdictions that enact the Uniform Unclaimed Property Act and take into consideration the rules of administrators in other jurisdictions that enact the Uniform Unclaimed Property Act.
(c) The commissioner may join with other states to seek enforcement of this article against any person who is or may be holding property reportable under this article.
(d) At the request of another state, the Attorney General of this state may bring an action in the name of the administrator of the other state in any court of competent jurisdiction in this state to enforce the unclaimed property laws of the other state against the holder in this state of property subject to escheat or a claim of abandonment by the other state, if the other state has agreed to pay expenses incurred by the Attorney General in bringing that action.
(e) The commissioner may request that the attorney general of another state or any other person bring an action in the name of the commissioner in the other state. This state shall pay all expenses including attorney's fees in any action under this subsection. The commissioner may agree to pay the person bringing the action attorney's fees based in whole or in part on a percentage of the value of any property recovered in the action. Any expenses paid pursuant to this subsection may not be deducted from the amount that is subject to the claim by the owner under this article.
(a) Except as provided in Article 17B of Title 10, every person holding funds or other property, tangible or intangible, presumed abandoned under this article shall report and remit to the commissioner with respect to the property as provided in this Code section.
(b) The report shall be verified and shall include:
(1) The name and social security or federal identification number, if known, and last known address, including ZIP Code, if any, of each person appearing from the records of the holder to be the owner of any property of the value of $50.00 or more presumed abandoned under this article;
(2) In case of unclaimed funds of insurance corporations, the full name of the insured or annuitant and any beneficiary, if known, and the last known address according to the insurance corporation's records;
(3) In the case of the contents of a safe-deposit box or other safekeeping repository or in the case of other tangible property, a description of the property and the place where it is held and may be inspected by the commissioner, and any amounts owing to the holder;
(4) The nature and identifying number, if any, or description of the property and the amount appearing from the records to be due, except that items of value under $50.00 each may be reported in aggregate;
(5) The date when the property became payable, demandable, or returnable, and the date of the last transaction with the owner with respect to the property; and
(6) Other information which the commissioner prescribes by rule as necessary for the administration of this article.
(c) If the person holding property presumed abandoned is a successor to other persons who previously held the property for the owner or if the holder has changed his name while holding the property, he shall file with his report all prior known names and addresses of each holder of the property.
(d) The report and remittance shall be filed before November 1 of each year as of June 30 next preceding, but the report and remittance of insurance corporations shall be filed before May 1 of each year as of December 31 next preceding. When property is evidenced by certificate of ownership as set forth in Code Section 44-12-201, the holder shall deliver to the commissioner a duplicate of any such certificate registered in the name of the commissioner at the time of report and remittance. The commissioner may postpone the reporting and remittance date upon written request by any person required to file a report.
(e) If the holder of property presumed abandoned under this article knows the whereabouts of the owner, the holder shall, before filing the annual report, communicate with the owner and take necessary steps to prevent abandonment from being presumed. All holders shall exercise due diligence, as defined in Code Section 44-12-192, at least 60 days but no more than 120 days prior to the submission of the report to ascertain the whereabouts of the owner if the holder has in its records an address for the apparent owner which the holder's records do not disclose to be inaccurate and the property has a value of $50.00 or more.
(f) Verification, if made by a partnership, shall be executed by a partner; if made by an unincorporated association or private corporation, by an officer; and if made by a public corporation, by its chief fiscal officer.
(g) The initial report and remittance filed under this Code section shall include all items of property that would have been presumed abandoned if this article had been in effect during the 15 year period preceding January 1, 1973.
(h) Nothing in this Code section shall be construed to require a utility to include in its initial report any item of money or property as to which the name of the owner and his last known address do not appear in the records maintained by the utility in accordance with rules or practices sanctioned by any state or federal regulatory body having jurisdiction over the utility.
(a) The commissioner shall electronically publish notice of the reports filed under Code Section 44-12-214 on the Department of Revenue's website.
(b) The published notice shall be entitled the “Georgia Unclaimed Property List” and shall contain the names in alphabetical order and the internal identification number of persons listed in the report and entitled to notice within the county as provided in Code Section 44-12-214.
(c) The notice shall contain a statement that information concerning the amount or description of the property and the name of the holder may be obtained by any persons possessing an interest in the property by addressing an inquiry to the commissioner. In cases of property submitted pursuant to Code Section 44-12-211.1, the notice shall also contain the year, make, model, and vehicle identification number of the motor vehicle sold pursuant to Article 1A of Chapter 11 of Title 40, “The Abandoned Motor Vehicle Act.”
(d) The commissioner shall not be required to publish in such notice any item with a value of less than $50.00 unless the commissioner deems such publication to be in the public interest.
(a) Upon payment or delivery of abandoned property to the commissioner, the state shall assume custody and shall be responsible for the safekeeping of the property. Any person who pays or delivers abandoned property to the commissioner under this article is relieved of all liability, to the extent of the value of the property so paid or delivered, or for any claim which then exists or which thereafter may arise or be made with respect to the property. Any holder who has paid moneys to the commissioner pursuant to this article may reimburse any person appearing to such holder to be entitled thereto; and, upon proof of such payment and proof that the payee was entitled thereto, the commissioner shall forthwith reimburse the holder for the payment.
(b) In the event legal proceedings are instituted by any other state or states in any state or federal court with respect to unclaimed funds or abandoned property previously paid or delivered to the commissioner, the holder shall give written notification to the commissioner and the Attorney General of this state of such proceedings within ten days after service of process or at least ten days before the return date on which an answer or similar pleading is due or any extension thereof is secured by the holder. The Attorney General may take such action as he deems necessary or expedient to protect the interest of this state. The Attorney General, by written notice prior to the return date on which an answer or similar pleading is due or any extension thereof is secured by the holder, but in any event in reasonably sufficient time for the holder to comply with the directions received, shall either direct the holder actively to defend in the proceedings or direct that no defense be entered into the proceedings. If a direction is received from the Attorney General that the holder need not make a defense, this shall not preclude the holder from entering a defense in his own name if he should so choose. However, any defense made by the holder on his own initiative shall not entitle the holder to reimbursement for legal fees, costs, and other expenses as is provided in this Code section with respect to defenses made pursuant to the direction of the Attorney General. After the holder has actively defended in the proceedings pursuant to the direction of the Attorney General or has been notified in writing by the Attorney General that no defense need be made with respect to such funds, if a judgment is entered against the holder for any amount paid to the commissioner under this article, the commissioner, upon being furnished either proof of payment or satisfaction of such judgment, shall reimburse the holder the amount so paid. The commissioner shall also reimburse the holder for any legal fees, costs, and other directly related expenses incurred in legal proceedings undertaken pursuant to the direction of the Attorney General.
(c) Property removed from a safe-deposit box or other safekeeping repository that is received by the commissioner shall be subject to the holder's right under this Code section to be reimbursed for the actual cost of the opening and to any valid lien or contract providing for the holder to be reimbursed for unpaid rent or storage charges. The commissioner shall make the reimbursement to the holder out of the proceeds remaining after the deduction of the commissioner's selling costs.
<Text of section effective until July 1, 2024. See, also, text of section 44-12-217 effective July 1, 2024.>
(a) All abandoned property, other than money delivered to the commissioner under this article, shall, within three years after the delivery, be sold by him to the highest bidder at public sale in whatever city in the state affords, in his judgment, the most favorable market for the property involved. The commissioner may decline the highest bid and reoffer the property for sale if he considers the price bid insufficient. He need not offer any property for sale if, in his opinion, the probable cost of the sale exceeds the value of the property.
(b) Any sale held under this Code section shall be preceded by a single publication of notice thereof at least three weeks in advance of the sale in a newspaper of general circulation in the county where the property is to be sold.
(c) At any sale conducted by the commissioner pursuant to this article, the purchaser shall receive title to the property purchased free from all claims of the owner or prior holder thereof and of all persons claiming through or under them. The commissioner shall execute all documents necessary to complete the transfer of title.
(d) If the commissioner determines after investigation that any property delivered under this article has insubstantial commercial value of less than $100.00, he may destroy or otherwise dispose of the property at any time. No action or proceeding may be maintained against the state or any officer or against any holder for or on account of any action taken by the commissioner pursuant to this subsection.
<Text of section effective until July 1, 2024. See, also, text of section 44-12-218 effective July 1, 2024.>
All funds received under this article, including the proceeds from the sale of abandoned property under Code Section 44-12-217, shall be deposited by the commissioner in the general fund; provided, however, that the commissioner may deduct moneys necessary to cover the direct administrative expenses required to identify, locate, secure, and transmit abandoned property prior to depositing such funds. Before making a deposit he or she shall record the name and last known address of each person appearing from the holders' reports to be entitled to the abandoned property and of the name and last known address of each insured person or annuitant and, with respect to each policy or contract listed in the report of an insurance corporation, its number, the name of the corporation, and the amount due.
The commissioner, after receiving reports of property deemed abandoned pursuant to this article, may decline to receive any property reported which he deems to have a value less than the cost of giving notice and holding sale, or he may, if he deems it desirable because of the small sum involved, postpone taking possession until a sufficient sum accumulates. Unless the holder of the property is notified to the contrary within 120 days after filing the report required under Code Section 44-12-214, the commissioner shall be deemed to have elected to receive the custody of the property.
<Text of section effective until July 1, 2024. See, also, text of section 44-12-220 effective July 1, 2024.>
(a) A person, excluding another state, claiming an interest in any property paid or delivered to the commissioner may file with him a claim on a form prescribed by him and verified by the claimant.
(b) The commissioner shall consider each claim within 90 days after it is filed and give written notice to the claimant if the claim is denied in whole or in part. The notice may be given by mailing it to the last address, if any, stated in the claim as the address to which notices are to be sent. If no address for notices is stated in the claim, the notice may be mailed to the last address, if any, of the claimant as stated in the claim. No notice of denial need be given if the claim fails to state either the last address to which notices are to be sent or the address of the claimant.
(c) If a claim is allowed, the commissioner shall pay over or deliver to the claimant the property or the amount the commissioner actually received or the net proceeds if it has been sold by the commissioner. The owner is not entitled to receive income or other increments accruing after remittance to the commissioner.
(d) The commissioner may, after seven years following the receipt of property, destroy such records related to the property as deemed necessary; and after said seven-year period any claim relating to such property must be fully substantiated by a claimant, without recourse to such records.
<Text of section effective until July 1, 2024. See, also, text of section 44-12-221 effective July 1, 2024.>
Any person aggrieved by a decision of the commissioner or whose claim the commissioner has failed to act upon within 90 days after the filing of the claim may appeal such decision or lack of decision to the Superior Court of Fulton County. The proceeding shall be brought within 90 days after the decision of the commissioner or within 180 days of the filing of the claim if the commissioner fails to act. The appeal shall be tried de novo without a jury.
<Text of section effective until July 1, 2024. See, also, text of section 44-12-222 effective July 1, 2024.>
(a) The commissioner shall consider any claim filed under this article and may hold a hearing and receive evidence concerning it. If a hearing is held, he shall prepare a finding and a decision in writing on each claim filed, stating the substance of any evidence heard by him and the reasons for his decision. The decision shall be a public record.
(b) If the claim is allowed, the commissioner shall make payment forthwith. The claim shall be paid without deduction for costs of notice.
The expiration of any period of time specified by statute or court order, during which an action or proceeding may be commenced or enforced to obtain payment of a claim for money or property, shall not prevent the money or property from being presumed abandoned property nor affect any duty to file a report required by this article or to pay or deliver abandoned property to the commissioner.
<Text of section effective until July 1, 2024. See, also, text of section 44-12-224 effective July 1, 2024.>
(a) All agreements to pay compensation to recover or assist in the recovery of property reported and delivered to the commissioner under this article shall be unenforceable for 24 months after the date of payment or the delivery of property to the commissioner.
(b) The fees charged by any person, firm, or corporation to recover or assist in the recovery for and on behalf of a claimant of property reported and delivered to the commissioner under this article shall not exceed 10 percent of the value of the property recovered. All funds or property located by a person to be compensated by the payment of such a fee shall be paid or delivered directly to the owner and may not be paid or delivered to the person to receive the fee whether pursuant to a duly executed power of attorney or otherwise.
Any information or records required to be furnished to the commissioner shall be confidential except as otherwise necessary in the proper administration of this article.
The expiration, before or after July 1, 1990, of any period of time specified by contract, statute, or court order during which a claim for money or property can be made or during which an action or proceeding may be commenced or enforced to obtain payment of a claim for money or to recover property, does not prevent the money or property from being presumed abandoned nor affect any duty to file a report or to pay or deliver abandoned property to the commissioner as required by this article.
(a) A person, firm, or corporation who willfully fails to render any report or perform other duties required under this article shall pay a civil penalty of $100.00 for each day the report is withheld or the duty is not performed, but not more than $5,000.00.
(b) A person, firm, or corporation who willfully fails to pay or deliver property to the commissioner as required under this article shall pay a civil penalty equal to 25 percent of the value of the property that should have been paid or delivered.
(c) A person, firm, or corporation who willfully refuses after written demand by the commissioner to pay or deliver as required by this article is guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000.00 or by imprisonment not to exceed six months or by both such fine and imprisonment.
<Text of section effective until July 1, 2024. See, also, text of section 44-12-228 effective July 1, 2024.>
(a) Every financial institution, banking organization, and business association and all other holders required to file a report under Code Section 44-12-214 shall retain all books, records, and documents necessary to establish the accuracy and compliance of such report for ten years after the property becomes reportable, except to the extent that shorter time is provided in accordance with Article 5 of Chapter 18 of Title 50, the “Georgia Records Act,” or in subsection (b) of this Code section or by rule of the commissioner. As to any property for which it has obtained the last known address of the owner, the holder shall maintain a record of the name and last known address of the owner for the same ten-year period.
(b) Any business associations that sell in this state their traveler's checks, money orders, or other similar written instruments, other than third-party bank checks on which the business association is directly liable, or that provides such instruments to others for sale in this state shall maintain a record of those instruments while they remain outstanding, indicating the state and date of issue for three years after the date the property is reportable.
<Text of section effective until July 1, 2024. See, also, text of section 44-12-229 effective July 1, 2024.>
(a) The commissioner may require any person who has not filed a report to file a verified report stating whether or not the person is holding any unclaimed property reportable or deliverable under this article.
(b) The commissioner may at reasonable times and upon reasonable notice examine the records of any person to determine whether the person has complied with the provisions of this article. The commissioner may conduct the examination even if the person believes it is not in possession of any property reportable or deliverable under this article.
(c) If a holder fails to maintain the records required by Code Section 44-12-228 and the records of the holder available for the periods subject to this article are insufficient to permit the preparation of a report, the holder shall be required to report and pay such amounts as may reasonably be estimated from any available records.
The commissioner may employ the services of such independent consultants, and other persons possessing specialized skills or knowledge as he shall deem necessary or appropriate for the administration of this article, including, but not limited to, valuation, maintenance, upkeep, management, sale and conveyance of property, and determination of sources of unreported abandoned property.
(a) The commissioner may bring an action in a court of competent jurisdiction to enforce this article. Notwithstanding the provisions of Code Section 44-12-214, the commissioner shall commence enforcement for the reporting, payment, or delivery of property presumed abandoned under this article, with the exception of property held in a fiduciary capacity, not later than seven years from the date the property is presumed abandoned.
(b) Properties due and owing under this Code section and not paid over to the commissioner on a timely basis shall be paid upon notice and demand by the commissioner or the commissioner's delegate and shall be assessed and collected in the manner provided for assessment and collection of state taxes in Chapters 2, 3, and 4 of Title 48. The commissioner is authorized to issue an execution for the amounts due as provided in Code Section 48-3-1. The remedies specified in this subsection shall be in addition to all other remedies provided for in this article.
(a) This article does not relieve the holder of a duty that arose before July 1, 1990, to report, pay, or deliver property. A holder who did not comply with the law in effect before July 1, 1990, is subject to the applicable enforcement and penalty provisions that then existed and they are continued in effect for the purpose of this subsection, subject to Code Section 44-12-227.
(b) The initial report filed under this article for property that was not required to be reported before July 1, 1990, but which is subject to this article must include all items of property that would have been presumed abandoned during the ten-year period preceding July 1, 1990, as if this article had been in effect during that period.
Whenever the commissioner shall receive securities under this article in the name of the owner, he shall forthwith take appropriate action to transfer the record of ownership of said securities into the name of the commissioner.
This article does not apply to any property held, due, and owing in a foreign country and arising out of a foreign transaction.
The commissioner may make necessary rules and regulations to carry out the provisions of this article.
(a) As used in this Code section, the term:
(1) “Approved uses” means:
(A) Donated to an Internal Revenue Code Section 501(c)(3) organization serving in the electric membership corporation's service area;
(B) Used in support of education in the electric membership corporation's service area; or
(C) Used for economic development purposes in the electric membership corporation's service area.
(2) “Electric membership corporation's service area” means any county in which the electric membership corporation provides electric service and any county adjacent thereto.
(b) All patronage dividends or capital credits presumed abandoned pursuant to this article in a given calendar year that are held by an electric membership corporation organized and operating pursuant to Article 4 of Chapter 3 of Title 46 may, in lieu of payment of delivery to the commissioner pursuant to this article, be donated for approved uses if the electric membership corporation has:
(1) Maintained for at least six months on the electric membership corporation's website or on a public posting in the electric membership corporation's main office a list of the names and last known addresses of all owners of property held by the electric membership corporation which has been presumed abandoned, together with instructions on how to claim such property; and
(2) Published in the legal organ in the county in which the electric membership corporation's main office is located notice of the last date to claim property that has been presumed abandoned. Such notice shall be published within three to six months prior to the last date to claim the property and shall state that the names of the owners may be found at the electric membership corporation's website or the main office.
(a) As used in the Code section, the term:
(1) “Area” means any county in which a telephone cooperative provides telephone service and any county adjacent thereto.
(2) “Telephone cooperative” shall have the same meaning as provided for the term “cooperative” in Code Section 46-5-62.
(3) “Telephone service” shall have the same meaning as provided for in Code Section 46-5-62.
(b) All patronage dividends or capital credits held by a telephone cooperative that are presumed abandoned pursuant to this article in a given calendar year may, in lieu of payment of delivery to the commissioner pursuant to this article, be donated to a nonprofit organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code that supports education or economic development in the area if the telephone cooperative has:
(1) Maintained for at least six months on the telephone cooperative's website or on a public posting in the telephone cooperative's main office, a list of the names and last known addresses of all owners of property held by the telephone cooperative that have been presumed abandoned, together with instructions on how to claim such property; and
(2) Published in the legal organ in the county in which the telephone cooperative's main office is located notice of the last date to claim property that has been presumed abandoned. Such notice shall be published within three to six months prior to the last date to claim the property and shall state that the names of the owners may be found at the telephone cooperative's website or main office.
(a) Notwithstanding the provisions of subsection (a) of Code Section 44-12-216, United States savings bonds which are unclaimed property and subject to the provisions of Code Section 44-12-190, et seq., the “Disposition of Unclaimed Property Act,” shall escheat to the State of Georgia three years after becoming unclaimed property and subject to the provisions of Code Section 44-12-190, et seq., and all property rights to such United States savings bonds or proceeds from such bonds shall vest solely in the State of Georgia.
(b) If, within 180 days after the passage of three years pursuant to subsection (a) of this Code section, no claim has been filed in accordance with the provisions of Code Section 44-12-190, et seq., for such United States savings bonds, the commissioner shall commence a civil action in the Superior Court of Fulton County for a determination that such United States savings bonds shall escheat to the state. The commissioner may postpone the bringing of such action until sufficient United States savings bonds have accumulated in the commissioner's custody to justify the expense of such proceedings.
(c) If no person shall file a claim or appear at the hearing to substantiate a claim or if the court shall determine that a claimant is not entitled to the property claimed, then the court, if satisfied by evidence that the commissioner has substantially complied with the laws of this state, shall enter a judgment that the subject United States savings bonds have escheated to the state.
(d) The commissioner shall redeem such United States savings bonds, and the proceeds shall be deposited in the state general fund in accordance with the provisions of Code Section 44-12-218.
Any person making a claim for the United States savings bonds escheated to the state under Code Section 44-12-237, or for the proceeds from such bonds, may file a claim in accordance with the provisions of Code Section 44-12-190, et seq., the “Disposition of Unclaimed Property Act.” Upon providing sufficient proof of the validity of such person's claim, the commissioner may pay such claim in accordance with the provisions of Code Section 44-12-190, et seq.
(a) In order to file claims as a claimant's designated representative, receive a distribution of fees and costs from the department, or obtain information pertaining to unclaimed property held by the department, a claimant's designated representative shall register with the department by paying a $1,200.00 registration fee and completing a form published by the department soliciting the information the commissioner deems reasonably necessary to administer the requirements of this article, including, but not limited to:
(1) The business address and telephone number of the registrant and, if applicable, the registrant's employer;
(2) The tax identification number of the registrant and, if applicable, the registrant's employer;
(3) A legible copy of the registrant's current driver's license showing the full name and current address of such person. If a current driver's license is not available, another form of photo identification as prescribed by the commissioner shall be filed with the department;
(4) The names of agents or employees, if any, who are designated to submit claims on behalf of the registrant, together with a legible copy of their driver's license showing their full name and address or other form of photo identification as prescribed by the commissioner; and
(5) Sufficient information to enable the department to disburse fee payments to the registrant.
(b) Registrants shall submit to a background check for all employees designated to submit or process claims on behalf of the registrant.
(c) The knowing submission of false information by any registrant pursuant to this article may be punishable by law, including as a false statement prohibited under Code Section 16-10-20.
(d) A claimant's designated representative is ineligible for registration if, within the immediately preceding 20 years, the designated representative, or such designated representative's officer, owner, or employee designated to act on behalf of the representative, was convicted of a misdemeanor or felony involving dishonesty, deceit, or fraud, or adjudications of responsibility in civil actions pertaining to breach of fiduciary duties.
(e) If a material change in the status of a registration occurs, a registrant shall, within 30 days, provide the department with the updated documentation and information in writing. Material changes include, but are not limited to a designated agent or employee ceasing to act on behalf of the designating person; changes in any of the contact information provided pursuant to this Code section; any criminal convictions for crimes, whether felonies or misdemeanors, involving dishonesty, deceit, or fraud; or adjudications of responsibility in civil actions pertaining to breach of fiduciary duties. Failure to comply with this subsection shall result in immediate revocation of the registration as a claimant's designated representative.
(f) Any solicitation from a claimant's designated representative to an owner or apparent owner of unclaimed property shall include the following notice in all capital letters in at least 12 point type or in a font larger than the font utilized in the solicitation, whichever is larger: “THIS IS A SOLICITATION. THIS IS NOT A BILL OR OFFICIAL GOVERNMENT DOCUMENT AND HAS NOT BEEN SENT BY THE STATE OF GEORGIA. YOU ARE NOT REQUIRED TO USE THE SERVICES OFFERED IN THIS SOLICITATION.”
(g) A claimant's designated representative may not register under or use a business name that might lead a reasonable person to conclude that the representative, firm, or employer is an agent of the United States, or an agency thereof, or a state or an agency or political subdivision of a state.
(h) Registration by a claimant's designated representative shall have a four-year term and may be renewed if the claimant's designated representative continues to meet the applicable criteria. Upon renewal, a claimant's designated representative shall pay a renewal fee of $1,200.00.
(i) A duly registered claimant's designated representative is authorized to submit claims and respond to requests for additional information on behalf of a claimant and apparent owner, and to receive information related to accounts claimed directly from the commissioner.
(j) Any decision by the commissioner or the commissioner's authorized agent to deny, suspend, revoke, or not renew a claimant's designated representative's registration shall set forth the basis for such action. An applicant for registration or renewal aggrieved by any decision of the commissioner or the commissioner's designated representative is entitled, upon request, to a hearing before the commissioner or the commissioner's designated representative. The request shall set forth with specificity the reasons for the request and the manner of relief sought.
(k) Hearings conducted under subsection (j) of this Code section shall be conducted under the terms and conditions of Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(a) The commissioner shall provide a registered claimant's designated representative with access to a downloadable or deliverable, searchable and sortable data base for all unclaimed accounts containing the following information, if provided by the holder:
(1) Name of the apparent owner. If the property is from an insurance policy, the name of the insured and beneficiary, if applicable;
(2) Last known address of the apparent owner. If the apparent owner is the insured under an insurance policy, the address of the beneficiary, if applicable;
(3) Owner account relation utilized by the National Association of Unclaimed Property Administrators;
(4) Amount of cash, if applicable;
(5) For unliquidated securities or mutual funds account, the number of shares, the name of the issuer of the security or mutual funds account, and the Committee on Uniform Securities Identification Procedures number, if available;
(6) For safe-deposit box contents, descriptions that are substantially similar to those utilized by the National Association of Unclaimed Property Administrators;
(7) Property type descriptions that are substantially similar to those utilized by the National Association of Unclaimed Property Administrators;
(8) Date of last activity;
(9) Year property was reported to the commissioner; and
(10) Holder's name and contact information.
(b) A claimant's designated representative who receives unclaimed property information from the commissioner is prohibited from distributing such information except for the purpose of soliciting owners of unclaimed property to offer claim services. The commissioner may refer a suspected violation of this Code section to the Attorney General for prosecution.
(c) Notwithstanding Code Section 44-12-225, information identified in subsection (a) of this Code section shall not be deemed confidential to registered claimant's designated representatives.
(a) The following acts are violations of this article and shall constitute grounds for an administrative enforcement action by the department:
(1) Failure to comply with any provision of this article, any rule or order adopted under this article, or any written agreement entered into with the department;
(2) Fraud, misrepresentation, deceit, or gross negligence in any matter within the scope of this article;
(3) Fraudulent misrepresentation, circumvention, or concealment of any matter required to be stated or furnished to an owner or apparent owner under this article, regardless of reliance by or damage to the owner or apparent owner;
(4) Willful imposition of illegal or excessive charges in any unclaimed property transaction;
(5) False, deceptive, or misleading solicitation or advertising within the scope of this article;
(6) Failure to maintain, preserve, and keep available for examination all books, accounts, or other documents required by this article, by any rule or order adopted under this article, or by any agreement entered into with the department under this article;
(7) Refusal to permit inspection of books and records in an investigation or examination by the department or refusal to comply with a subpoena issued by the department under this article;
(8) Criminal conduct in the course of a person's business;
(9) Failure to timely pay any fee or fine imposed or assessed under this article or any rule adopted under this article;
(10) Requesting or receiving compensation for notifying a person of his or her unclaimed property or assisting another person in filing a claim for unclaimed property, or entering into, or making a solicitation to enter into, an agreement to file a claim for unclaimed property owned by another, or a contract or agreement to purchase unclaimed property, unless such person is registered with the department under this article; provided, however, that this paragraph shall not apply to a person who has been granted a durable power of attorney to convey and receive all of the real and personal property of the owner, is the court appointed guardian of the owner, has been employed as an attorney or qualified representative to contest the department's denial of a claim, or has been employed as an attorney to probate the estate of the owner or an heir or legatee of the owner;
(11) Failure to authorize the release of records in the possession of a third party after being requested to do so by the department regarding a pending examination or investigation; and
(12) Receipt or solicitation of consideration to be paid in advance of the approval of a claim under this article.
(b) Upon a finding by the department that any person has committed any of the acts set forth in subsection (a) of this Code section, the department may enter an order:
(1) Requiring such person to cease and desist or take corrective action as specified by the department;
(2) Revoking a registration previously granted under this article during which time the registrant may not reapply for a registration under this article;
(3) Placing a registrant on probation for a period and subject to such conditions as the department may specify;
(4) Placing permanent restrictions or conditions upon issuance or maintenance of a registration under this article;
(5) Imposing an administrative fine not to exceed $2,000.00 for each such act which shall be retained by the department for purposes of administering this article; or
(6) Prohibiting any person from being a director, officer, agent, employee, or ultimate equitable owner of a 10 percent or greater interest in an employer of a claimant's designated representative.
(c) A claimant's designated representative is subject to the disciplinary actions specified in subsection (b) of this Code section for violations of subsection (a) of this Code section by an agent or employee of the registrant's employer if the registrant knew or should have known that such agent or employee was violating any provision of this article.
(d) A person aggrieved by any enforcement action imposed by the department is entitled, upon request, to a hearing before the commissioner or the commissioner's designated representative which shall be conducted in accordance with Chapter 13 of Title 50, the ‘Georgia Administrative Procedure Act.’ Such hearing request shall set forth with specificity the reasons for the request and the manner of relief sought.
(e) The department may seek any appropriate civil legal remedy available to it by filing a civil action in a court of competent jurisdiction against any person who has, directly or through a claimant's representative, wrongfully submitted a claim as the ultimate owner of property and improperly received funds from the department in violation of this article.
(f) In addition to any other powers conferred upon it to enforce and administer the provisions of this article, the commissioner may refer to the Attorney General for further investigation any conduct the commissioner believes, in the commissioner's sole discretion, may warrant civil or criminal enforcement.
As used in this article, the term:
(1) “Harvesting season” means that portion of each calendar year beginning on October 1 and ending on December 31.
(2) “Owner” means the person, firm, or corporation owning the land on which pecan trees are growing or the person, firm, or corporation having legal possession of the land.
(a) When pecan trees are grown on private property and the branches of the trees extend over public roads, streets, or highway rights of way, any pecans falling from any such pecan trees onto the public rights of way shall be the property of the owner of the pecan trees until the end of the harvesting season; and it shall be unlawful for any person to remove the pecans from any public rights of way during the harvesting season without the permission of the owner of the trees.
(b) It shall be unlawful for any person, without the permission of the owner of pecan trees grown on private property, to pick or otherwise remove any pecans from the limbs or branches of the trees or to cause pecans to fall from the trees.
(c) Any person who violates this Code section shall be guilty of a misdemeanor.
Any pecans remaining on public roads, streets, or highway rights of way during any portion of the calendar year except the harvesting season shall be deemed to be abandoned by the owner of the pecans; and it shall not be unlawful for any person to remove such pecans from such public rights of way.
This article shall not be construed to prohibit employees of the Department of Transportation or the employees of a county or municipality from engaging in normal activities of maintenance on the rights of way of public roads, streets, or highways; nor shall this article be construed to grant the owner of any pecan trees the right to harvest pecans from the right of way of any interstate or other limited access highway.
As used in this article, the term:
(1) “American Indian” means an individual who is a member of a nation, tribe, band, group, or community that was indigenous to Georgia; is a descendant of persons named as American Indians in the Georgia Senate Bill 89, enacted during the legislative session of 1839 (Ga. L. 1839, p. 374); or is a descendant of persons included in the United States Indian Claims Commission, Docket 21, 1962, and those sequel dockets pertaining to the Creek Nation east of the Mississippi River.
(2) “American Indian tribe” means any nation, tribe, band, group, or community that was indigenous to Georgia and is recognized as eligible for the special programs and services provided by the United States to Indians because of its status as Indian; or whose members are descendants of American Indians indigenous to Georgia.
(3) “Burial object” means an object that, as a part of the death rite or ceremony of a culture, is reasonably believed to have been placed with individual human remains either at the time of death or later. Such term includes any item defined in paragraph (4) of Code Section 36-72-2 and may also include but not be limited to urns; whole or broken ceramic, metal, or glass vessels; chipped stone tools; ground stone tools; worked bone and shell items; clothing; medals; buttons; jewelry; firearms; edged weapons; and the caskets or containers for the human remains.
(4) “Burial site” or “burial ground” means an area dedicated to and used for interment of human remains. The fact that the area was used for burial purposes shall be evidence that it was set aside for burial purposes. Such a site may be any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which, as a part of the death rite or ceremony of a culture, individual human remains are deposited. Such term does not include any cemetery required to be registered with the Secretary of State pursuant to Code Section 10-14-4.
(5) “Council” means the Council on American Indian Concerns established by Code Section 44-12-280.
(6) “Cultural affiliation” means that there is a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe and an identifiable earlier group.
(7) “Human remains” means the bodies of deceased human beings in any stage of decomposition, including cremated remains.
(8) “Inventory” means a simple itemized list that summarizes the information called for by this article.
(9) “Museum” means any institution or state or local government agency or any institution of higher learning that is not included in paragraph (8) of Section 2 of Public Law 101-601.
(a) Any museum having possession or control over holdings or collections of American Indian human remains or burial objects shall compile an inventory of such items and, to the extent possible based on information possessed by such museum, identify the geographical and cultural affiliation of such items.
(b) The inventory and identification required under subsection (a) of this Code section shall be:
(1) Completed in consultation with American Indian tribes;
(2) Completed by not later than July 1, 1997; and
(3) Made available to the Secretary of State and the council both during the time conducted and afterward.
(c) Upon the request of any American Indian tribe, a museum shall supply additional available documentation to supplement the information required by subsection (a) of this Code section. Such documentation shall consist of a summary of existing museum records, including inventories or catalogs, relevant studies, and other pertinent data for the limited purpose of determining the geographical origin, cultural affiliation, and basic facts surrounding the acquisition and accession of American Indian human remains and burial objects subject to this Code section.
(d) This part shall not be construed to be an authorization for the initiation of new scientific studies of human remains and burial objects or the initiation of any other method of acquiring or preserving additional scientific information from such remains and objects.
(e) Any museum which has made a good faith effort to carry out an inventory and identification under this Code section, but which has been unable to complete the process, may appeal to the Secretary of State for an extension of the time requirement set forth in paragraph (2) of subsection (b) of this Code section. The Secretary of State may once grant an extension of up to one year for any such museum upon a finding of good faith effort. An indication of good faith shall include the development of a plan to carry out the inventory and identification process.
(f) If the cultural affiliation of any particular American Indian human remains or burial objects is determined pursuant to this Code section, the museum concerned shall not later than six months after the completion of the inventory notify the affected American Indian tribes. The notice shall include information:
(1) Which identifies or describes each American Indian human remains or burial object and the circumstances surrounding its acquisition;
(2) Which lists the human remains or burial objects that are clearly identifiable as to tribal origin; and
(3) Which lists the American Indian human remains and burial objects that are not clearly identifiable as being culturally affiliated with that Indian tribe, but which, given the totality of circumstances surrounding acquisition of the remains or objects, are determined by a reasonable belief to be remains or objects culturally affiliated with the Indian tribe.
A copy of each notice shall be sent to the Secretary of State and to the Council on American Indian Concerns.
(a) Upon the request of a known lineal descendant of the particular American Indian or, if a cultural affiliation is established between a particular American Indian tribe and particular human remains or burial objects, the request of the tribe, and pursuant to subsections (d) and (e) of this Code section, the museum shall expeditiously return such remains and objects. However, no human remains or burial objects shall be repatriated outside of the State of Georgia unless claimed by a known lineal descendant of the deceased person, as proved by clear and convincing evidence.
(b) The return of human remains and burial objects covered by this part shall be in consultation with the requesting descendant or tribe to determine the place and manner of delivery of such items.
(c) Where cultural affiliation between an American Indian tribe and human remains or burial objects has not been established in an inventory prepared pursuant to Code Section 44-12-261, such American Indian tribe can establish cultural affiliation by a preponderance of the evidence based upon geographical, kinship, biological, archeological, anthropological, linguistic, folkloric, oral tradition, historical, or other relevant information or expert opinion.
(d) If either a lineal descendant of the deceased person or an American Indian tribe culturally affiliated with human remains or burial objects requests the return of such American Indian human remains or burial objects, the museum shall expeditiously return such items unless such items are indispensable for the completion of a specific scientific study, the outcome of which would be of major benefit to the State of Georgia, as determined by the Secretary of State and the council. Such items shall be returned by no later than 120 days after the date on which scientific study is completed. If the Secretary of State and the council cannot agree on the benefit of the scientific study, then they shall each appoint one representative to serve on a committee created and convened for the sole purpose of resolving the issue. The Governor shall appoint a person to chair the committee. Such person may not be an employee of the Secretary of State or a member of the council. The chairperson may vote to break a tie.
(e) When there are multiple requests for repatriation of any American Indian human remains or burial objects and after complying with the requirements of this part the museum cannot clearly determine which requesting party is the most appropriate claimant, the museum may retain such item until the requesting parties agree upon its disposition or the dispute is resolved pursuant to the provisions of this article or in a court of competent jurisdiction.
(f) Any museum which repatriates any American Indian human remains or burial objects in good faith pursuant to this part shall not be liable for claims by an aggrieved party or for claims of breach of fiduciary duty or public trust.
(g) Nothing in this Code section shall require private citizens to surrender artifact collections that do not contain burial objects.
The council shall monitor and review the implementation of inventory and identification process and repatriation activities required under Code Sections 44-12-261 and 44-12-262 to ensure a fair, objective consideration and assessment of all available relevant information and evidence.
(a) Any museum which fails to comply with the provisions of Code Section 44-12-261 or 44-12-262 shall be subject to a civil penalty to be imposed by the council. The amount of such penalty shall be based upon:
(1) The archeological, historical, or commercial value of the item involved;
(2) The damages suffered, both economic and noneconomic, by an aggrieved party; and
(3) The number of violations that have occurred
but in no event shall the aggregate amount of such civil penalty exceed $5,000.00.
(b) Whenever the council proposes to subject a person to the imposition of a civil penalty under this Code section, the council shall notify such person in writing:
(1) Setting forth the date, facts, and nature of each act or omission with which the person is charged;
(2) Specifically identifying the particular provision or provisions of the Code section, rule, regulation, order, license, or registration certificate involved in the violation; and
(3) Advising of each penalty which the council proposes to impose and its amount.
Such written notice shall be sent by registered or certified mail or statutory overnight delivery by the council to the last known address of such person. The person so notified shall be granted an opportunity to show in writing, within such reasonable period as the council shall by rule or regulation prescribe, why such penalty should not be imposed. The notice shall also advise such person that, upon failure to pay the civil penalty subsequently determined by the council, if any, the penalty may be collected by civil action. Any person upon whom a civil penalty is imposed may appeal such action pursuant to Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(c) A civil penalty finally determined under this Code section may be collected by civil action in the event that such penalty is not paid as required. On the request of the council, the Attorney General is authorized to institute a civil action to collect a penalty imposed pursuant to this Code section. The Attorney General shall have the exclusive power to compromise, mitigate, or remit such civil penalties as are referred to the Attorney General for collection.
(d) All moneys collected from civil penalties shall be paid to the state for deposit in the general fund.
(a) As used in this Code section, the term:
(1) “Anthropologist” means a physical anthropologist who holds a Ph.D. in physical anthropology with demonstrated experience in on-site identification of human skeletal remains and who is currently active in the profession.
(2) “Archeologist” means any person who:
(A) Is a member of or meets the criteria for membership in the Society of Professional Archaeologists and can demonstrate experience or formal training in the excavation and interpretation of human graves; or
(B) Was employed on July 1, 1992, by the state or by any county or municipal governing authority as an archeologist.
(b) There is created the Council on American Indian Concerns, which shall consist of nine members to be appointed by the Governor. Five members shall be American Indians. Three members shall represent the scientific community and shall include at least one archeologist and one anthropologist; provided, however, that if no anthropologist can be identified who is willing to serve, then the membership reserved to an anthropologist shall be filled by a person who holds a master's degree or a higher degree in the field of anthropology and is currently active in the profession. One member shall be selected from the general public at large. All members of the council shall be legal residents of the State of Georgia. The Governor shall consult the tribal groups located in the state recognized by general law, the Human Relations Commission, the Georgia Council of Professional Archaeologists, the Society for Georgia Archaeology, and the Department of Natural Resources for recommendations before appointing members of the council.
(c) The council is assigned to the Department of Natural Resources for administrative purposes only, as specified in Code Section 50-4-3.
(d) The terms of appointment for members of the council shall be as follows: two American Indians, one scientist, and one representative of the general public shall be appointed for an initial term of three years; two American Indians, one scientist, and one representative of the general public shall be appointed for an initial term of two years; and one scientist shall be appointed for an initial term of one year. The member who represents the general public and who has the least time left in his or her term on July 1, 2002, shall cease to be a member on that date, and a member who is an American Indian shall be appointed to take office on that day for a term of three years. The Governor shall specify the length of the initial term of the councilmembers in their initial appointments. After such initial terms, all councilmembers shall be appointed for terms of three years. Active and continued participation by members of the council is needed. The Governor may remove any member who fails to attend three regularly scheduled consecutive meetings. Councilmembers may succeed themselves.
Councilmembers shall receive no compensation for their services but shall be reimbursed for their actual travel and expenses necessarily incurred in the performance of their duties for each day such member of the council is in attendance at a meeting of the council.
Annually, the councilmembers shall elect a chairperson for a term of one year. The council shall meet as frequently as needed to perform its duties, upon the call of the council chairperson. Five councilmembers shall constitute a quorum to conduct business.
The council shall have the following powers and duties:
(1) To serve as a resource for the notification of relatives under paragraph (4) of Code Section 36-72-5, relating to notification of relatives pursuant to obtaining a permit for land use change or disturbance; provided, however, that failure of the council to respond within 30 days to a request to serve as a resource for the notification shall not prevent the notification process or any permit process from taking place;
(2) To receive notice of permits issued and contracts issued under subsection (c) of Code Section 12-3-52 that affect aboriginal, prehistoric, or American Indian burial sites;
(3) To monitor the inventory and identification process conducted under Code Section 44-12-261 to ensure a fair, objective consideration and assessment of all available relevant information and evidence;
(4) To facilitate the resolution of disputes among American Indian tribes, lineal descendants of American Indians, and museums relating to the return of American Indian remains and burial objects pursuant to Code Section 44-12-262, including convening the parties to the dispute;
(5) To advise the Department of Natural Resources, the General Assembly, the Human Relations Commission, the Secretary of State, local political subdivisions, state and local law enforcement agencies, and other appropriate agencies and individuals regarding policy matters relating to issues affecting American Indians;
(6) To apply for and receive grants, gifts, and direct appropriations from the federal government; the state government; any county, municipal, or local government; any board, bureau, commission, agency, or establishment of any such government; any other organization, public or private; and any individual or groups of individuals; and
(7) To preserve and foster the culture and heritage of Indians and Indian descendants in this state and to be the agency to deal with specific federal programs which are required to be dealt with only by an Indian agency or organization.
In addition to any other powers granted by law, the council may, in its discretion, study, consider, accumulate, compile, assemble, and disseminate information on any aspect of Indian affairs; investigate relief needs of Indians in Georgia and provide technical assistance in the preparation of plans for the alleviation of such needs; confer with appropriate officials of local, state, and federal governments, and agencies of these governments, and with such congressional committees that may be concerned with Indian affairs, in order to encourage and implement coordination of applicable resources to meet the needs of Indians in Georgia; cooperate with and secure the assistance of the local, state, and federal governments, or any agencies thereof, in formulating any such programs and coordinate such programs with any programs regarding Indian affairs adopted or planned by the federal government, to the end that the department secures the full benefit of such programs; review all proposed or pending state legislation and amendments to existing state legislation affecting Indians in Georgia; conduct public hearings on matters relating to Indian affairs; study the existing status of recognition of all Indian groups, tribes, and communities presently existing in the state; expend funds in compliance with state regulations; and make legislative recommendations.
The council is authorized to promulgate rules and regulations to accomplish the provisions of this article in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” The council is expressly prohibited from engaging in any activity which would tend to assist the implementation of Indian gaming in this state, and the council shall immediately notify in writing the Governor, the President of the Senate, and the Speaker of the House of Representatives of any communication it may receive from any source relating to such subject.
The council may delegate duties to one or more councilmembers or agents. The council is authorized to obtain the services of such professional, technical, and clerical personnel as may be necessary to enable it to carry out its functions under this part and to contract for such services as may be necessary to enable the council to carry out its responsibilities.
The council shall make an annual report of its activities to the Governor.
(a) The State of Georgia officially recognizes as legitimate American Indian tribes of Georgia the following tribes, bands, groups, or communities:
(1) The Georgia Tribe of Eastern Cherokee
P.O. Box 1993
Dahlonega, Georgia 30533;
(2) The Lower Muscogee Creek Tribe
Route 2, Box 370
Whigham, Georgia 31797; and
(3) The Cherokee of Georgia Tribal Council
Saint George, Georgia 31646.
(b) The General Assembly may recognize tribes, bands, groups, or communities other than those stated in subsection (a) of this Code section as the General Assembly deems appropriate.
As used in this article, the term:
(1) “Customer” means any individual or entity who causes or caused a molder to fabricate, cast, or otherwise make a die, mold, form, or pattern or who provides a molder with a die, mold, form, or pattern to manufacture, assemble, cast, fabricate, or otherwise make a product or products for a customer.
(2) “Molder” means any individual or entity who fabricates, casts, or otherwise makes or uses a die, mold, form, or pattern for the purpose of manufacturing, assembling, casting, fabricating, or otherwise making a product or products for a customer. “Molder” includes, but is not limited to, a tool or die maker.
(3) “Within three years following the last prior use” shall include any three-year period following the last prior use of a die, mold, form, or pattern regardless of whether or not any portion of such period precedes July 1, 1999.
(a) In the absence of any agreement to the contrary, the customer shall have all rights and title to any die, mold, form, or pattern in the possession of the molder.
(b) If a customer does not claim possession from a molder of a die, mold, form, or pattern within three years following the last prior use, all rights and title to any die, mold, form, or pattern shall be transferred by operation of law to the molder for the purpose of destroying or otherwise disposing of such die, mold, form, or pattern, consistent with this Code section.
(c) If a molder chooses to have all rights and title to any die, mold, form, or pattern transferred to the molder by operation of law, the molder shall send written notice by registered mail or statutory overnight delivery to the chief executive officer of the customer or, if the customer is not a business entity, to the customer at the customer's last known address, indicating that the molder intends to terminate the customer's rights and title by having all such rights and title transferred to the molder by operation of law pursuant to this Code section. Such notice shall include a statement of the customer's rights as set forth in subsection (d) of this Code section.
(d)(1) If a customer does not respond in person or by mail to claim possession of the particular die, mold, form, or pattern within 120 days following the date the notice was sent, or does not make other contractual arrangements with the molder for storage of the die, mold, form, or pattern, all rights and title of the customer, except patents and copyrights, shall transfer by operation of law to the molder. Thereafter, the molder may destroy or otherwise dispose of the particular die, mold, form, or pattern as the molder's own property without any risk of liability to the customer.
(2) This Code section shall not in any manner affect any right of the customer under federal patent or copyright law or federal law pertaining to unfair competition.
(a) Molders shall have a lien, dependent on possession, on all dies, molds, forms, or patterns in their hands belonging to a customer, for the balance due them from such customer for any manufacturing or fabrication work related to the property on which the molder claims the lien. Such liens shall attach upon the commencement of work by the molder and shall be subject to any prior perfected security interest in such property as of the commencement date. The molder may retain possession of the die, mold, form, or pattern until the charges are paid or until repossessed by a creditor with a prior perfected security interest.
(b) Before enforcing such lien, notice in writing shall be given to the customer, whether delivered personally or sent by registered mail or statutory overnight delivery to the last known address of the customer. Such notice shall state that a lien is claimed for the damages set forth in or attached to such writing for manufacturing or fabrication work contracted or performed for the customer. Such notice shall also include a demand for payment.
(c) A lien may not be enforced under this part if the customer, within the time period provided in subsection (d) of this Code section, notifies the molder that the products fail to meet an approved quality control plan, the products deviated from approved samples, or the products deviated from previously accepted parts and the customer returns the products within 60 days after the date on which the products are delivered to the customer.
(d) If the molder has not been paid the amount due within 60 days after the notice has been received by the customer as provided in subsection (b) of this Code section and the products have not been returned to the molder within 60 days after the date on which the products are delivered to the customer because of a defective condition as provided in subsection (c) of this Code section, the molder may sell the die, mold, form, or pattern at a public auction.
(e) In no event shall the amount of the lien established by this Code section exceed the contract price of services performed by the molder.
(a) Before a molder may sell a die, mold, form, or pattern, pursuant to subsection (c) of Code Section 44-12-320, the molder shall notify the customer by registered mail or statutory overnight delivery, return receipt requested. The notice shall include the following information:
(1) The molder's intention to sell the die, mold, form, or pattern 30 days after the customer's receipt of the notice;
(2) A description of the die, mold, form, or pattern to be sold;
(3) The time and place of the sale; and
(4) An itemized statement for the amount due.
(b) If there is no return of the receipt of the mailing or if the postal service returns the notice as being nondeliverable, the molder shall publish notice of the molder's intention to sell the die, mold, form, or pattern in a newspaper of general circulation in the county of the customer's last known place of business. The notice shall include a description of the die, mold, form, or pattern.
(c) A sale shall not be made under this Code section if such sale would violate any right of a customer under federal patent or copyright law.
In the event of any conflict between the provisions of this part and the provisions of Articles 7 and 8 of Chapter 14 of this title, the provisions of this part shall control.
Except as otherwise provided in this article, there shall be exempt from levy and sale by virtue of any process whatever under the laws of this state any real or personal property or both of a debtor in the amount of $5,000.00 or $21,500.00 for real or personal property that is the debtor's primary residence. No court or ministerial officer in this state shall ever have jurisdiction or authority to enforce any judgment, execution, or decree against property set apart under this Code section, including such improvements as may be made thereon from time to time, except for taxes, for the purchase money of the property, for labor done on the property, for material furnished for the property, or for the removal of encumbrances on the property.
As used in this article, the term “dependent” means a person whom the debtor may claim as a dependent for income tax purposes pursuant to Code Section 48-7-26.
Should a debtor refuse to apply for an exemption under this article, the debtor's spouse, any person acting on behalf of the minor children of the debtor, or any person acting on behalf of the dependents of the debtor may make such application; and it shall be as binding as if done by the debtor.
It shall be the right of the applicant to supplement his exemption by adding to an amount already set apart, which amount is less than the whole amount of the exemption allowed by this article, enough to make his exemption equal to the whole amount allowed by resorting to the methods for setting apart and valuation of the exemptions provided in this chapter. The proceedings shall be in all respects the same.
(a) Each person seeking the benefit of the exemptions provided in this article shall apply by petition to the judge of the probate court of the county in which he resides or in which the debtor's minor children or dependents reside when the application is made for their benefit. The petition shall state:
(1) The debtor for whom the exemption is claimed;
(2) The names and ages of minor children and dependents of the debtor; and
(3) Out of what and whose property exemptions are claimed.
The petition shall comply with all the requirements of the laws for the setting apart and valuation of the exemptions provided by this article.
(b) The applicant shall accompany his petition with a schedule containing a minute and accurate description of all real and personal property belonging to the person from whose estate the exemption is to be made so that persons interested may know exactly what is exempted and what is not and also with a list of his creditors and their post office addresses, if known, which must be sworn to by the applicant or his agent.
(c) For a failure to comply with this Code section either in the original petition which may be amended at any time prior to the final proceedings before the judge of the probate court or in the amended petition, the judge shall dismiss the petition.
(d) The applicant shall apply to the judge of the probate court for an order to the county surveyor or, if there is none, to some other surveyor to lay off any real property of the applicant and to make a plat of the same, which order the judge shall issue at once and give to the applicant.
Whenever the applicant does not possess a sufficient amount of realty located in the county of his residence, he may include in his application tracts of land located in counties other than that of his residence. In such case, the judge of the probate court before whom the application is made shall cause the survey, valuation, and plat of the lands lying in counties other than the residence of the applicant to be made by the county surveyor of the county where the lands are located.
It shall be the duty of any person who shall claim the benefit of the exemption allowed in this article to act in perfect good faith. As it is in the power of the debtor claiming an exemption of personal property to conceal part of his property or money and to claim the balance as exempt, it shall be the duty of the debtor, when he shall take steps in the probate court to have an exemption of personal property set off to him, to make a full and fair disclosure of all the personal property, including money, stocks, and bonds, which he may possess at the time. All such money or property which he may hold in excess of the exemption shall be subject to levy and sale for the payment of his just debts. If the money or other personal property which the debtor possesses at the time of his application or at the time he obtains the order of court setting off exempt property shall be fraudulently concealed or shall not be delivered up for the benefit of his creditors, no exemption shall be made in his favor until it shall be so delivered up. All orders of the court obtained by the fraudulent concealment of property or obtained while the debtor had personal property, money, stocks, or bonds which he kept out of the reach of the levying officer or did not in good faith deliver up for the benefit of his creditors shall be null and void and of no effect. In such event, the property set off to the debtor by such order or judgment shall be subject to levy and sale as if no such order or judgment had been rendered; and all property in which the debtor shall have invested the money, stocks, bonds, or personal property fraudulently concealed by him or kept out of the reach of his creditors shall be subject to levy and sale and liable to be sold for the payment of any debt then in existence. The debtor who is guilty of willful fraud in the concealment of part of his property which he possessed when he sought the benefit of the exemption shall on account of his fraud lose the benefit of the exemption, and his property shall be subject to the payment of all just debts which he owed at the time such fraud was committed; but the property, when once set off to him by order of the court, shall be exempt as against all debts contracted after that time.
When the schedule has been filed and the application has been made, the judge of the probate court, in order that all persons may know when action will be taken on the petition, shall publish in the newspaper in which the legal advertisements of the county are published, not more than twice, a notice as follows:
“A.B. has applied for exemption of personalty, and setting apart and valuation of realty exempt from levy and sale under Article 1 of Chapter 13 of Title 44 of the Official Code of Georgia Annotated, and I will pass upon the same at _____ M., on the _____ day of _____, _____, at my office. C.D., Judge of the Probate Court.”
In addition to the notice by publication required to be given by Code Section 44-13-7, the applicant or his agent shall give notice in writing of the filing of the application and of the day of hearing the same to each of his creditors residing in the county. Such notice shall be given at least five days before the hearing and shall be served personally or by leaving a copy at the residence or place of business of his creditor; and the fact that such notice has been given shall be verified by oath of the applicant or his agent. The applicant shall also notify creditors residing outside of the county of his application by preparing written notices of his application and the day of hearing, which notices shall be delivered by him to the judge of the probate court together with stamped envelopes and, if the residence of the creditors shall be known to the petitioner, shall be directed by the judge and mailed to the persons residing out of the county at least 15 days before the day of the hearing.
The time fixed by the notice given pursuant to Code Sections 44-13-7 and 44-13-8 shall not be less than 20 nor more than 30 days from the date of the filing of the application and schedule.
(a) The surveyor to whom the applicant delivers the order pursuant to subsection (d) of Code Section 44-13-4 shall lay off the exempted real property on or out of the land claimed by the applicant and make a plat of the same and shall make an affidavit that the exempted real property is correctly platted and laid off and setting out its value. He shall return the affidavit to the judge of the probate court at least five days before the day appointed in the order for passing upon the application.
(b) It shall be a valid ground of objection to the propriety of any survey that it has been so made as to injure unjustly or needlessly the value of any land left unexempted by a disregard of the shape and location of the entire tract.
(c) Should any county surveyor fail to comply with his duty as prescribed by this Code section, he shall be punished for a contempt of court by the judge of the probate court.
If, at the time and place appointed for passing upon the application, no objection is raised by any creditor of the applicant, the judge of the probate court shall endorse upon the schedule and upon the plat: “Approved this the ___ day of __________, ___,” filling the blanks, and shall sign the schedule and plat officially and hand such application to the clerk of the superior court of the clerk’s county; and, when land out of the clerk’s county is exempted, the judge shall transmit a certified copy of the exempted real property to the clerk of the superior court of each county in which exempted land is located. Each clerk of the superior court of a county in which exempted land is located shall record the exempted real property in a book to be kept for that purpose.
Should any creditor of the applicant desire to object to the schedule for want of sufficiency and fullness or for fraud of any kind or to dispute the valuation of the personalty, the propriety of the survey, or the value of the premises so platted as the exempted real property, he shall specify his objections in writing at the time and place appointed for the hearing.
Upon an objection being made as provided for in Code Section 44-13-12, unless the applicant shall so alter the schedule or plat or both as to remove the objections, the judge of the probate court shall appoint three disinterested appraisers to examine the property concerning which the objections are made and to value the same. On the appraisers' return under oath, if either the schedule or the plat shall be found to be too large, such alterations shall be made in the schedule and in the plat as the judge may deem proper to bring them within the limits of the value allowed by this article. Thereafter, the judge shall approve the schedule and the plat as required by Code Section 44-13-11 and shall cause the same to be delivered to the clerk of superior court of his or her county who shall record the schedule and plat as required by Code Section 44-13-11. Either party dissatisfied with the judgment shall have the right to appeal under the same rules, regulations, and restrictions as are provided by law in cases of appeals from the probate court.
(a) If an applicant seeks to have an exemption set apart out of real property located in town which exceeds in value the amount of the exemption which he claims and to which he is entitled to complete his legal exemption and such realty cannot be so divided as to give an exemption of that value, the judge of the probate court may pass an order that, should such property be thereafter sold by virtue of any order, judgment, or decree of any court in this state, so much of the proceeds of the sale as may be necessary to make up, when added to the other exempted property of the applicant, if any, the full amount of the exemption allowed by law shall be paid over to the judge of the probate court by the officer making the sale to be invested in property selected by the applicant by some proper person appointed by such judge, which property shall constitute the exemption of the applicant or a part thereof, as the case may be, after the order of the probate court and the deed of reinvestment have been recorded by the clerk of the superior court.
(b) Should any ministerial officer of this state, upon being shown a certified copy of the order of the judge of the probate court provided for in subsection (a) of this Code section, fail to retain and pay over to such judge the proceeds as required or should any such judge receiving the proceeds fail to appoint the person required to have the proceeds invested and fail to turn over the proceeds to the person so appointed, such officer or judge and his sureties shall be liable to the applicant for the full amount of the money and 20 percent interest thereon for the period of time he wrongfully withholds the money or any part thereof.
When any person applies for an exemption of personalty and the personalty sought to be exempted consists of cash in whole or in part, before the cash shall be allowed as an exemption, it shall, under the direction of the judge of the probate court, be invested in such articles of personal property as the applicant may desire; when so invested and returned by schedule with or without other property as required by this article, such property shall constitute the exemption of personalty. In no case shall the allowance of cash without such investment be a valid exemption.
(a) Whenever the debtor shall desire the exempted property, whether real or personal, to be sold for reinvestment, an application for the sale of the property must be made to the judge of the superior court of the county where the debtor resides or the property is situated unless the judge is disqualified, in which case application may be made to the judge of the superior court of an adjoining circuit. Upon proper showing, the judge may order a sale of the property; and the proceeds shall be reinvested upon the same uses.
(b) A sale ordered pursuant to subsection (a) of this Code section shall operate to pass to the purchaser the entire interest and title of the beneficiaries in the exempted property and also the entire interest and title owned, before the exemption was made, by the party out of whose estate the property was so exempted.
(c) The purchaser shall receive the property sold and shall hold the same, as to all liens thereon against the original debtor and with the same exemption therefrom, for the same length of time as was allowed to the original debtor before the sale; and, by consent of all lien creditors, the liens of such creditors may be divested and transferred to the newly acquired property by the order of the court pursuant to subsection (a) of this Code section.
(d) An applicant who has obtained an exemption for the spouse, minor children, or dependents of the debtor may apply for an order of sale under subsections (a) through (c) of this Code section. All persons interested shall be parties to the proceeding.
(e) The judge of the superior court shall order the entire proceedings recorded in the minutes by the clerk of the superior court of the county in which the parties applying for the order of sale reside and, when land is to be sold, in the county where the land is located; and the judge shall provide the means and mode of sale and reinvestment as provided in this Code section.
(f) This Code section shall apply to the sale of any real or personal property set apart under this article.
Whenever any property has been set apart for the debtor's minor children or dependents and they desire the same to be sold for reinvestment but the debtor fails or refuses to join with them in the application to have such property sold for reinvestment or whenever a divorce has been granted to the spouse of the debtor and the property exempted by this article and sought to be sold for reinvestment has been awarded to that spouse, the proceedings for reinvestment shall be in all respects as binding upon all parties as if the debtor had joined with the minor children, dependents, or spouse, respectively, in the application.
All produce, rents, or profits arising from property in this state which is exempted under this article shall be for the support of those persons allowed such exemption and shall be exempt from levy and sale except as otherwise provided in this article.
Before the approval of the judge of the probate court may be demanded as provided in this article, the applicant shall pay to such judge the cost of the proceedings, including the clerk's cost for recording the same. The applicant shall be bound for such costs if the judge approves the application. If any person filing objections to the schedule or plat fails to have the same sustained, he shall pay the cost of the proceedings.
Property set apart pursuant to Code Section 44-13-2 for a spouse, for a spouse and minor children, for minor children alone, or for dependents of a debtor (1) upon the death of the spouse or the spouse's remarriage, when set apart to the spouse alone, (2) upon the attaining of the age of 18 by the minor children or their emancipation during minority, when set apart for the minor children, (3) upon the death or remarriage of the spouse and the attaining of the age of 18 by the minor children or the emancipation of the minor children, when set apart to the spouse and minor children, and (4) upon a former dependent person's no longer being eligible to be claimed by the debtor as a dependent for income tax purposes pursuant to Code Section 48-7-26, shall revert to the estate from which it was set apart unless it was sold or reinvested pursuant to this article, in which case this Code section shall apply to and follow all the reinvestments unless the fee simple has been sold as provided in this article.
Nothing contained in this article shall be construed to prevent any debtor who does not wish to avail himself of the benefits of this article from claiming the exemptions allowed by Code Section 44-13-100. No person who is allowed the exemptions under Code Section 44-13-100 shall take any benefit under this article; nor shall any person who is allowed the exemptions under this article be allowed the exemptions under Code Section 44-13-100 unless the exempted property so elected is lost by virtue of a sale under an outstanding claim, in which event the election shall not bar an application for an exemption under this article not liable to the outstanding claim.
Any debtor may, except as to wearing apparel and $300.00 worth of household and kitchen furniture and provisions, waive or renounce his right to the benefit of the exemption provided for by this article by a waiver, either general or specific, in writing simply stating that he does so waive or renounce such right, which waiver may be stated in the contract of indebtedness or may be made contemporaneously therewith or may be made subsequent to the execution of the contract of indebtedness in a separate paper.
In case of a waiver and the levy of an execution, the debtor may select and set apart $300.00 worth of household and kitchen furniture and provisions as free from levy and sale. If, when such selection is made, the plaintiff in fi. fa. shall be of the opinion that said property is of greater value than $300.00, he may indemnify the levying officer and require him to proceed with the levy upon some part of the property or all if it be incapable of division. It shall then be the right of the debtor to make and deliver to the levying officer an affidavit stating substantially that the property selected is not of greater value than $300.00. The levy and affidavit shall be returned to the next term of the superior court of the county of the residence of the debtor and shall be tried as cases of illegality, the only issue being the value of the property selected. The jury may find generally for the defendant in fi. fa., in which case the levy shall be dismissed, or may find specifically what portion of the property is of the value of $300.00, which portion shall be exempted, and the balance shall be sold; provided, however, that the jury or other tribunal trying the issue made by the levy and affidavit may assess damages, not exceeding 25 percent of the value of the property levied upon, against the plaintiff in execution for any levy made not in good faith for the collection of the execution but for the purpose of harassing the debtor.
Every debtor seeking the benefit of Code Section 44-13-41 shall make out a schedule of the debtor's household and kitchen furniture and provisions which shall set out the items and value thereof claimed to be exempt and shall return the schedule to the judge of the probate court of the county in which the applicant resides. It shall not be necessary to make any application for such exemption or to publish the schedule in a newspaper. The judge shall record the schedule in a book to be kept by him for that purpose.
A person eligible under Code Section 44-13-2 to claim a debtor's exemption as a spouse or dependent of the debtor may not, during the time the debtor's exemption is allowed that person as spouse or dependent, be granted an exemption in that person's own right under this article.
(a) When an exemption under this article of realty and personalty or either has been applied for and set apart out of the property of a defendant in execution and the defendant in execution has no property except the real property on which the defendant resides on which to levy, if the plaintiff in execution seeks to have that real property levied on upon the ground that his debt falls within some or one of the classes for which the real property is bound under this article, such plaintiff, his agent, or his attorney may make an affidavit before any officer authorized to administer oaths that to the best of his knowledge and belief the debt upon which the execution is founded is one from which that real property is not exempt. Thereafter, it shall be the duty of the officer into whose hands the execution and the affidavit are placed to proceed at once to levy and sell as though the property had never been set apart.
(b) The defendant in execution may deny the truth of the plaintiff's affidavit by filing a counteraffidavit with the levying officer. If a counteraffidavit is filed, it shall be the duty of the levying officer to suspend further proceedings under the execution and to return the same together with the two affidavits to the court from which the execution issued.
At the first term of the court to which the execution and the affidavits have been returned, an issue shall be formed upon the same and tried as in cases of illegality.
When the finding upon the trial provided for in Code Section 44-13-61 is in favor of the plaintiff in execution, it shall be the duty of the levying officer to proceed immediately with the collection of the debt by the sale of the real property upon which the defendant in execution resides, if necessary. When the finding upon such issue is in favor of the defendant in execution, it shall operate to release that real property without prejudicing any other right of the plaintiff.
Except as provided in Code Section 44-13-60, any officer knowingly levying on or selling property made exempt from sale shall be guilty of trespass; and any person allowed such exemption may recover for such trespass for their exclusive use.
Whenever any person makes an application for an exemption of realty under this article and it appears by the return of the surveyor that the applicant is the owner of more real estate than is allowed to be exempt under this article, it shall be the duty of the judge of the probate court to appoint a receiver to take charge of the excess and to sell the same for the benefit of the creditors of the applicant under regulations set forth in this part.
Whenever any person makes an application for an exemption of personalty as provided for by this article and the schedule filed by the person discloses that the person has and is the owner of personal property in excess of that to which he is entitled to have as exempt, the excess shall be delivered by the judge of the probate court to a receiver who shall dispose of the excess for the benefit of the creditors of the applicant.
When a receiver is appointed as provided in Code Section 44-13-80, he shall proceed to advertise the real estate once a week for four weeks in the public newspaper in which the sheriff's sales of the county are advertised. On the first Tuesday of the month immediately following the last advertisement, the receiver shall expose the same for sale at public auction and the money arising from the sale of the property shall be delivered to the judge of the probate court for distribution among the several creditors of the applicant, such distribution to be made according to the dignity of the claims of the several creditors.
Personal property shall be disposed of in the manner provided in Code Section 44-13-82, except that the receiver shall advertise the same in three of the most public places of the county for 30 days and shall not be required to advertise the same in a public newspaper.
Nothing in this part shall be construed to authorize the appointment of more than one receiver.
If no creditors appear and file their claims before the day set apart for the sale of the property, the sale shall not take place; and the property in excess shall be turned over to the applicant.
When a receiver is appointed under Code Section 44-13-80, good bond and security shall be required of him by the judge of the probate court for the performance of his duty. The receiver shall be subject to rule in the superior court of the county where he was appointed, as sheriffs are, and shall, under rule of the superior court and not under the order of the judge of the probate court, pay out moneys received by him as sheriffs do when there are conflicting claims to moneys in his hands. When there are no conflicting claims, the receiver shall settle all the claims and turn over any excess to the party legally entitled to the same.
The applicant for exemption from levy and sale of property under this article shall be permitted to select the property to be exempted but not to exceed the amount allowed by law.
(a) In lieu of the exemption provided in Code Section 44-13-1, any debtor who is a natural person may exempt, pursuant to this article, for purposes of bankruptcy, the following property:
(1) The debtor's aggregate interest, not to exceed $21,500.00 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. In the event title to property used for the exemption provided under this paragraph is in one of two spouses who is a debtor, the amount of the exemption hereunder shall be $43,000.00;
(2) The debtor's right to receive:
(A) A social security benefit, unemployment compensation, or a local public assistance benefit;
(B) A veteran's benefit;
(C) A disability, illness, or unemployment benefit;
(D) Alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
(E) A payment under a pension, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
(F) A payment from an individual retirement account within the meaning of Title 26 U.S.C. Section 408 to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; and
(G) Moneys paid into or out of, the assets of, and the income of a health savings account or medical savings account authorized under Chapter 51 of Title 33 or Sections 220 and 223 of the Internal Revenue Code of 1986.
(2.1) The debtor's aggregate interest in any funds or property held on behalf of the debtor, and not yet distributed to the debtor, under any retirement or pension plan or system:
(A) Which is: (i) maintained for public officers or employees or both by the State of Georgia or a political subdivision of the State of Georgia or both; and (ii) financially supported in whole or in part by public funds of the State of Georgia or a political subdivision of the State of Georgia or both;
(B) Which is: (i) maintained by a nonprofit corporation which is qualified as an exempt organization under Code Section 48-7-25 for its officers or employees or both; and (ii) financially supported in whole or in part by funds of the nonprofit corporation;
(C) To the extent permitted by the bankruptcy laws of the United States, similar benefits from the private sector of such debtor shall be entitled to the same treatment as those specified in subparagraphs (A) and (B) of this paragraph,
provided that the exempt or nonexempt status of periodic payments from such a retirement or pension plan or system shall be as provided under subparagraph (E) of paragraph (2) of this subsection; or
(D) An individual retirement account within the meaning of Title 26 U.S.C. Section 408;
(3) The debtor's interest, not to exceed the total of $5,000.00 in value, in all motor vehicles;
(4) The debtor's interest, not to exceed $300.00 in value in any particular item, in household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor. The exemption of the debtor's interest in the items contained in this paragraph shall not exceed $5,000.00 in total value;
(5) The debtor's aggregate interest, not to exceed $500.00 in value, in jewelry held primarily for the personal, family, or household use of the debtor or a dependent of the debtor;
(6) The debtor's aggregate interest, not to exceed $1,200.00 in value plus any unused amount of the exemption, not to exceed $10,000.00, provided under paragraph (1) of this subsection, in any property;
(7) The debtor's aggregate interest, not to exceed $1,500.00 in value, in any implements, professional books, or tools of the trade of the debtor or the trade of a dependent of the debtor;
(8) Any unmatured life insurance contract owned by the debtor, other than a credit life insurance contract;
(9) The debtor's aggregate interest, not to exceed $2,000.00 in value, less any amount of property of the estate transferred in the manner specified in Section 542(d) of U.S. Code Title 11, in any accrued dividend or interest under, or loan or cash value of, any unmatured life insurance contract owned by the debtor under which the insured is the debtor or an individual of whom the debtor is a dependent;
(10) Professionally prescribed health aids for the debtor or a dependent of the debtor; and
(11) The debtor's right to receive, or property that is traceable to:
(A) An award under a crime victim's reparation law;
(B) A payment on account of the wrongful death of an individual of whom the debtor was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
(C) A payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of such individual's death, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
(D) A payment, not to exceed $10,000.00, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent; or
(E) A payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.
(b) Pursuant to 11 U.S.C. Section 522(b)(1), an individual debtor whose domicile is in Georgia is prohibited from applying or utilizing 11 U.S.C. Section 522(d) in connection with exempting property from his or her estate; and such individual debtor may exempt from property of his or her estate only such property as may be exempted from the estate pursuant to 11 U.S.C. Section 522(b)(2)(A) and (B). For the purposes of this subsection, an “individual debtor whose domicile is in Georgia” means an individual whose domicile has been located in Georgia for the 180 days immediately preceding the date of the filing of the bankruptcy petition or for a longer portion of such 180 day period than in any other place.
(c) The exemptions and protections contained in this article are extended to intestate insolvent estates in all cases where there is a living widow or child of the intestate.
(d)(1) At any time after closing of a case filed pursuant to an act of Congress relating to bankruptcy, the debtor, his or her receiver or trustee, or any interested party may file with a clerk of court where a judgment lien is recorded an affidavit of lien release and shall attach thereto a certified copy of the discharge of such bankrupt or debtor and a lien avoidance order, or a certified copy of the order of confirmation of a plan and the plan as confirmed, together with a copy of the portions of the schedules filed by the debtor in the bankruptcy case listing the judgment creditor and identifying property as exempt. In addition, the filer shall certify that no order has been entered in the bankruptcy limiting the discharge as to the judgment or retaining the judgment lien.
(2) Upon filing such affidavit, the lien of such judgment shall be deemed cancelled as to:
(A) Any property which was:
(i) Identified as exempt and for which a lien avoidance order was issued; or
(ii) Re-vested in the debtor without lien retention under a plan; and
(B) Any other property acquired by the debtor after the filing of the bankruptcy petition.
(3) The clerk of court shall file such affidavit in the deed records and index the recording information as to the affidavit of lien release on the judgment lien in the appropriate lien record.
Every debtor seeking the benefit of Code Section 44-13-100 or, if he refuses, his wife or any person acting as her next friend shall make out a schedule of the property claimed to be exempt and shall return the schedule to the judge of the probate court of the county without making any application for homestead; and it shall not be necessary to publish the schedule in a newspaper. The judge shall record the schedule in a book to be kept by him for that purpose; and, when land out of his county is exempted, he shall transmit the schedule to the judge of the probate court of the county in which the land is located for recording in like manner.
Upon an application by a debtor, it shall be the duty of the county surveyor or any other surveyor if there shall be no county surveyor to lay off the land allowed to the debtor's family under this article and make a plat of the same, which plat shall be returned to the judge of the probate court within 15 days after the application is made to the surveyor by the debtor, and recorded as provided for in Code Section 44-13-101.
Should any creditor, for any cause, desire to dispute the propriety of the survey or the value of the improvements, he may make application to the judge of the probate court and give notice to the debtor thereof. Thereafter, the judge may appoint three appraisers to view the survey and to value the improvements; and, on their return, the judge may direct the surveyor to make such alterations as shall, in his judgment, be conformable to law. It shall be a valid ground of objection to the propriety of any survey that the same has been so made by a disregard of the shape and location of the entire tract as to injure unjustly or needlessly the value of any land left unexempted.
If the debtor in value owns real property in town which exceeds the sum of $500.00 and it cannot be so divided as to give that amount to his family, he may give notice to the officer levying thereon. When the proceeds of the sale are distributed, the court shall order $500.00 of the same to be invested by some proper person in a home for the family of the debtor, which home shall be exempt as if laid off under this article.
If, from any cause, the exempt land has not been laid off when the remainder of the land is offered for sale, the purchaser shall buy subject to the encumbrance of the homestead if he was given notice of the exemption.
The property exempt under this article shall be for the use and benefit of the family of the debtor from whose estate the property has been exempted and allowed. Upon the death of the wife or her subsequent marriage, the property shall remain for the support and benefit of the minor children of the debtor during their minority.
Property exempted from levy and sale as provided for in this article shall not be exempt from levy and sale for the purchase money or for the state and county or municipal taxes.
Any officer who knowingly levies on or sells any property of a debtor which is exempt under this article, a schedule of which shall have been returned as required, shall be guilty of a trespass. An action may be brought therefor in the name of the wife or family of the debtor, and the recovery shall be for their exclusive use.
As against a domesticated judgment from another state, a judgment debtor resident in Georgia shall be entitled to assert, in addition to any other exemption under Georgia law, an exemption from levy and sale and any other process equal to the exemption which would be provided to the judgment debtor by the law of the state in which the judgment was entered if the judgment debtor were a resident of that state.
(a) As used in this Code section, the term “original party” means, without limitation, any bank, trust company, or other corporation into which the grantee of any real estate mortgage or deed conveying realty as security for a debt shall be merged or consolidated. In addition to the foregoing, the term “original party,” as used in this Code section, shall also include, without limitation, any bank, trust company, or other corporation, whether organized and existing under the laws of the United States or this state, into which the grantee of any real estate mortgage or deed conveying realty as security for a debt shall be converted.
(b) Except as provided in subsection (c) of this Code section, the operation of “open-end” clauses contained in real estate mortgages or deeds conveying realty as security for a debt, which clauses provide that, in addition to securing the debt named or described in the instrument, such instruments or the property thereby conveyed shall also secure any other debt or obligation that may be or become owing by the mortgagor or grantor, is limited to other debts or obligations arising ex contractu, as distinguished from those arising ex delicto, between the original parties to the security instrument.
(c) A transferee or assignee of an original party to a home equity line of credit agreement or contract who makes additional advances or disbursements on a home equity line of credit shall have the benefit of the security under the deed if the disbursements, made after the assignment, were authorized by the original parties to the home equity line of credit agreement or contract.
(a) Whether or not it contains clauses providing therefor, a real estate mortgage or deed conveying realty as security for a debt shall secure advances made:
(1) To pay taxes;
(2) To pay premiums on insurance on the property;
(3) To pay sums due to the holder of a deed to secure debt or lien on the property without which payment the secured position of the holder of the mortgage or deed to secure debt advancing such payment would be jeopardized;
(4) To repair, maintain, or preserve the property; and
(5) To complete improvements on the property,
whether such advances were made by the original owner or by any subsequent owner of the mortgage or deed to secure debt and whether the property is still owned by the original mortgagor or grantor or is owned by a subsequent purchaser of such property. Such mortgage or deed to secure debt shall secure all expenses incident to the collection of the debt thereby secured and the foreclosure thereof by an action in any court or by the exercise of the power of sale therein contained.
(b) Except for the advances set out in subsection (a) of this Code section, any extension of credit to the mortgagor or grantor after July 1, 1980, as to any debt or obligation arising subsequent to the actual notice of transfer of property or any valuable interest therein as provided in this subsection shall not be secured by virtue of the operation of an “open-end” clause described in Code Section 44-14-1 if the grantor of the instrument containing the “open-end” clause has transferred the property subject to such instrument or has transferred any valuable interest in such property and if the instrument effecting such transfer has been filed for record and actual notice of such transfer has been given to the holder of such instrument. In addition to other means of furnishing actual notice and for the purpose of this subsection, actual notice shall be deemed to have been given to the holder of such instrument upon evidence that:
(1) A properly stamped envelope which contained a copy of the recorded transfer and was addressed to the holder at its principal office was placed in the United States mail for registered or certified delivery and that the holder or an officer, agent, employee, or representative of the holder acknowledged receipt thereof on a United States Postal Service return receipt form for registered or certified mail delivery; or
(2) The recorded transfer was sent to the holder at its principal office by statutory overnight delivery and a receipt therefor obtained as provided in Code Section 9-10-12.
(c) Notwithstanding subsections (a) and (b) of this Code section and the occurrence of any of the events, acts, or conditions described therein, a real estate mortgage or deed conveying realty as security for a debt shall continue to secure any debt or obligation named or described therein and any advance permitted by this Code section.
(a) As used in this Code section, the term:
(1) “Account” means the loan, note, or other such agreement executed by the parties.
(2) “Finance charge” means interest and other charges agreed to by the parties.
(3) “Grantee” means heirs, devisees, executors, administrators, successors, transferees or assigns, and any servicing agent or any person or entity to whom indebtedness is paid on behalf of or by any grantor.
(4) “Grantor” means heirs, devisees, executors, administrators, successors, transferees, or assigns.
(5) “Instrument” means a deed to secure debt, a security instrument, a purchase money mortgage, a financing statement, a personalty mortgage, a loan contract, or other instrument executed in connection with any loan.
(6) “Revolving loan account” means an arrangement between a lender and a debtor for the creation of debt pursuant to an agreement secured by an instrument and under which:
(A) The lender may permit the debtor to create debt from time to time;
(B) The unpaid balances of principal of such debt and the loan finance and other appropriate charges are debited to an account;
(C) A loan finance charge is computed on the outstanding balances of the debtor's account from time to time;
(D) The debtor agrees to repay the debt and accrued finance charges in accordance with the written agreement with the lender; and
(E) The limitation on the maximum amount which the debtor is entitled to become indebted under said arrangement between the lender and debtor is stated on the face of the instrument, and said amount shall be deemed to be notice of the maximum amount secured by the instrument.
(b)(1) Whenever the indebtedness secured by any instrument is paid in full, the grantee or holder of the instrument, within 60 days of the date of the full payment, shall cause to be mailed to the grantor, at the grantor's last known address as shown on the records of the grantee or holder of the instrument, written notice of the grantee's or holder of the instrument's transmittal of notice of satisfaction or cancellation as required by this subsection and notice of the grantor's right to demand payment of $500.00 in liquidated damages from the grantee or holder of the instrument if such obligation is not timely met.
(2) Whenever the indebtedness secured by any instrument is paid in full, the grantee or holder of the instrument, within 60 days of the date of the full payment, shall cause to be furnished to the clerk of the superior court of the county or counties in which the instrument is recorded a legally sufficient satisfaction or cancellation to authorize and direct the clerk or clerks to cancel the instrument of record. The grantee or holder of the instrument shall further direct the clerk of the court to transmit to the grantor the original cancellation or satisfaction document at the grantor's last known address as shown on the records of the grantee or holder of the instrument. In the case of a revolving loan account, the debt shall be considered to be “paid in full” only when the entire indebtedness including accrued finance charges has been paid and the lender or debtor has notified the other party to the agreement in writing that he or she wishes to terminate the agreement pursuant to its terms.
(3) Notwithstanding paragraph (2) of this subsection, if an attorney at law remits the pay-off balance of an instrument to a grantee or holder of the instrument on behalf of a grantor, the grantee or holder of the instrument may direct the clerk of the court to transmit to such attorney the original cancellation or satisfaction document.
(4) A grantee or holder of the instrument shall be authorized to add to the pay-off amount the costs of recording a cancellation or satisfaction of an instrument.
(c)(1) Upon the failure of the grantee or holder of the instrument to transmit a legally sufficient satisfaction or cancellation as required by subsection (b) of this Code section, the grantee or holder of the instrument shall be liable to the grantor for the sum of $500.00 as liquidated damages and such additional sums for any loss caused to the grantor, plus reasonable attorney's fees if the grantor makes a written demand for liquidated damages to the grantee or holder of the instrument before transmittal, but not less than 61 days after the instrument is paid in full, and prior to filing a civil action.
(2) The grantee or holder of the instrument shall not be liable to the grantor if he or she demonstrates reasonable inability to comply with subsection (b) of this Code section; and the grantee or holder shall not be liable to the grantor unless and until a written demand for the liquidated damages as provided in subsection (b) of this Code section is made. No settlement agent or attorney may take an assignment of the right to the $500.00 in liquidated damages.
(3) Except as provided in paragraph (1) of subsection (b) and paragraph (2) of subsection (c) of this Code section, no other provision of this Code section shall be construed so as to affect the obligation of the grantee or holder of the instrument to pay the liquidated damages provided for in this subsection.
(4) At least 15 business days prior to filing a civil action to recover liquidated damages, the grantor shall provide notice in writing to the grantee or holder of the instrument at the address where the grantee or holder of the instrument directs payments to be mailed with respect to the indebtedness secured by the instrument or, if such address is not available, at the address of the grantee or holder of the instrument's registered agent for service of process in Georgia stating that the grantee or holder of the instrument:
(A) Has failed to comply with the obligation required by this Code section;
(B) Owes the grantor liquidated damages in the amount of $500.00; and
(C) May be sued by the grantor for the failure to comply with the provisions of this Code section.
(5) If the grantee or holder of the instrument fails to provide written notice to the grantor regarding the grantee's or holder of the instrument's obligation for transmittal as provided in paragraph (1) of subsection (b) of this Code section, the grantor may file a civil action at any time more than 60 days after the grantee's or holder of the instrument's receipt of full payment.
(c.1) In the event that a grantee or holder of record has failed to transmit properly a legally sufficient satisfaction or cancellation to authorize and direct the clerk or clerks to cancel the instrument of record within 60 days after a written notice mailed to such grantee or holder of record by registered or certified mail or statutory overnight delivery, return receipt requested, the clerk or clerks are authorized and directed to cancel the instrument upon recording an affidavit by an attorney who has caused the secured indebtedness to be paid in full or by an officer of a regulated or chartered financial institution whose deposits are federally insured if that financial institution has paid the secured indebtedness in full. The notice to be mailed to the grantee or holder of record shall identify the indebtedness and include a recital or explanation of this subsection. The affidavit shall include a recital of actions taken to comply with this subsection. Such affidavit shall include as attachments the following items:
(1) A written verification which was given at the time of payment by the grantee or holder of record of the amount necessary to pay off such loan; and
(2)(A) Copies of the front and back of a canceled check to the grantee or holder of record paying off such loan.
(B) Confirmation of a wire transfer to the grantee or holder of record paying off such loan.
(C) A bank receipt showing payment to the grantee or holder of record of such loan.
Any person who files an affidavit in accordance with this subsection which affidavit is fraudulent shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than three years or by a fine of not less than $1,000.00 nor more than $5,000.00, or both.
(d) In all cases, any servicing agent or any person or entity to whom the indebtedness is paid on behalf of any grantee shall be responsible for notifying the holder thereof upon payment in full and for securing the satisfaction or cancellation as provided in this Code section; and, upon failure to do so, the servicing agent or payee shall be subject to the same liability as provided in this Code section.
Any mortgagor who has paid off his or her mortgage may present the paid mortgage to the clerk of the superior court of the county or counties in which the mortgage instrument is recorded, together with the order of the mortgagee or transferee directing that the mortgage be canceled. After payment of the fee authorized by law, the clerk shall index and record, in the same manner as the original mortgage instrument is recorded, the canceled and satisfied mortgage instrument or such portion thereof as bears the order of the mortgagee or transferee directing that the mortgage be canceled, together with any order of the mortgagee or transferee directing that the mortgage be canceled. The clerk shall show on the index of the cancellation and on the cancellation document the deed book and page number where the original mortgage instrument is recorded. The clerk shall manually or through electronic means record across the face of the mortgage instrument the words “satisfied” and “canceled” and the date of the entry and shall sign his or her name thereto officially. The clerk shall also manually or electronically make a notation on the record of the mortgage to indicate where the order of the cancellation is recorded.
(a) As used in this Code section, the term:
(1) “Borrower” means a person who has secured an indebtedness with a security interest in real property or a person who has taken an interest in real property subject to an outstanding security interest in the real property and has notified the holder of the security interest that he has taken the real property and assumed the indebtedness secured by the real property.
(2) “Lender” means a person who has a security interest in real property, which interest is evidenced by a security deed, a mortgage, a trust deed, a bond for title, or other security document granting a security interest in real property to secure an indebtedness owed to the lender.
(3) “Person” means any individual, firm, partnership, corporation, joint venture, association, company, agency, syndicate, estate, trust, business trust, receiver, fiduciary, or other group or combination or any other entity whatsoever.
(b) Subject to the limitations and exceptions provided in this Code section, any lender with a security interest in real estate shall not, directly or indirectly:
(1) Accelerate or mature the indebtedness secured by the real estate on account of the sale or transfer of the real estate or on account of the assumption of the indebtedness, except as provided in paragraph (5) of this subsection. This paragraph shall not apply if the person to whom the real estate would be sold or transferred does not intend to occupy the property as the person's principal residence, if such occupancy is a requirement imposed by federal regulatory authorities upon the lender;
(2) Increase the interest rate above the existing interest rate of the indebtedness unless:
(A) The borrower who is primarily liable for the repayment of the indebtedness shall make a request in writing to the lender at the time of the making of the application to the lender for approval of the transfer or, at any time prior to the granting or denying of approval of the transfer by the lender, a request that the borrower desires to be relieved of liability under the terms of the security instrument and the note secured thereby; and
(B) The lender furnishes written evidence to the borrower that the borrower has been relieved of liability under the terms of the security instrument and the note secured thereby. In the event the lender so relieves the borrower of liability after having been requested to do so by the borrower, the lender may increase the interest rate on the indebtedness; provided, however, that the lender shall not escalate the interest in excess of 1 percent per annum above the existing interest rate at the time of the transfer nor shall the lender be entitled to escalate the interest rate at any time other than at the transfer of title and then not more often than once in any 24 month period. Any subsequent transfer of the property after 24 months from the time of the last escalation of interest shall likewise be limited to a 1 percent per annum increase above the interest rate of the indebtedness existing at the time of the subsequent transfer;
(3) Charge, collect, or attempt to collect any transfer fee on account of the sale or transfer of such real estate or on account of the assumption of such indebtedness in excess of:
(A) One-half of 1 percent of the principal amount of the indebtedness outstanding on the date of the transfer or $150.00, whichever is greater, in the event the lender does not relieve the borrower of liability for the repayment of the indebtedness;
(B) One percent of the principal amount of the indebtedness outstanding on the date of the transfer, in the event the lender does not escalate the interest rate but does relieve the borrower of liability for the repayment of the indebtedness; or
(C) One-half of 1 percent of the principal amount of the indebtedness outstanding on the date of such transfer or $250.00, whichever is greater, in the event the lender escalates the interest rate and relieves the borrower of liability for the repayment of the indebtedness.
Any borrower who has been relieved of liability for the repayment of the indebtedness may submit his affidavit of such fact to the clerk of the superior court in the county where the security instrument is recorded, which clerk shall enter a notation on the recorded security instrument to the effect that the borrower has been relieved of liability under the terms of the security instrument and the note secured thereby. Any such transfer fee shall not be considered interest and shall not be taken into account in the calculation of interest and shall not be considered a “rate of charge” as that term is defined in Code Section 7-4-30;
(4) Enforce or attempt to enforce the provisions of any mortgage, deed of trust, or other real estate security instrument executed on or after July 1, 1979, which provisions are contrary to this Code section;
(5) Withhold approval or disapproval of the sale or transfer of the real estate and the assumption of the indebtedness beyond 50 days after receipt by the lender of the completed written application for same on such form as may be required by the lender (a copy of which shall be furnished to the applicant) to determine the financial ability to retire the indebtedness of the applicant according to the lender's terms; otherwise, the sale or transfer and the assumption shall be approved; provided, however, that the parties by mutual agreement may extend the aforesaid period of time for a period not to exceed 30 days. The lender shall have the right, if permitted under the security instrument, to accelerate the indebtedness if the borrower transfers the property to a person if:
(A) The lender has reasonably determined, based upon the standards provided in this Code section, that such person is financially incapable of retiring the indebtedness according to the terms of the security instrument; or
(B) The lender is entitled under this Code section and the security instrument to increase the interest rate on the indebtedness, and the person to whom the real estate is transferred declines to agree to such increase.
Such acceleration shall be permitted only within a 60 day period after the lender acquires actual knowledge of the sale or transfer to such person; and
(6) Disapprove the sale or transfer of the real estate and the assumption of the indebtedness for any reason other than the credit worthiness of the person to whom the real estate would be sold or transferred, which disapproval is based upon standards normally used by persons in the business of making loans on real estate in the same or similar circumstances; otherwise, any due-on-sale clause or similar provision in the security instrument shall be deemed to be against public policy and shall be void.
(c) The maximum increase allowed in paragraph (2) of subsection (b) of this Code section and the maximum fee allowed in paragraph (3) of subsection (b) of this Code section shall not be deemed to be required, minimum, or ordinary; but the interest increase and fee may, in any case, be less than the amount allowed.
(d) This Code section shall be applicable only to a security interest in real property utilized as residential dwelling units other than apartments, motels, hotels, and nursing homes and only if the original amount of the loan is less than $100,000.00.
(e) This Code section shall not be applicable in those cases in which the secretary of housing and urban development, or his successor, matures the indebtedness on multiple-family housing projects pursuant to the current law and regulations of the Federal Housing Administration.
(f) This Code section shall not be applicable to a person with a security interest in real estate, which person is not regularly engaged in the business of making real estate loans.
(g) In the event that the party assuming the indebtedness declines to agree to an increase in the interest rate as provided in paragraph (2) of subsection (b) of this Code section, the indebtedness may be prepaid without penalty or increased interest at any time within 60 days after the assumption; but if the party does not make the prepayment within the 60 day period, the party shall be liable for the increased interest rate from the date of the assumption; and any prepayment penalty provided for in the security instrument shall thereafter be in effect. Any law to the contrary notwithstanding, such increased interest and the outstanding indebtedness shall be secured by the security instrument securing the indebtedness with the same priority as if the increased interest rate were originally set forth in the note evidencing the indebtedness.
(h) Nothing contained in this Code section shall be construed so as to permit a lender to increase the interest rate beyond applicable usury laws.
(i) Nothing in this Code section shall be construed to limit the right of the Federal Land Bank to increase or decrease the interest rate of any loan so long as the increase or decrease is pursuant to the terms of the variable interest rate provision of the security instrument or the note secured thereby and the increase or decrease is not the result of the transfer of the property serving the loan.
(j) This Code section shall not be applicable to loans made by the Farmers Home Administration, which loans provide for interest subsidies or variable interest rates based on the income of the borrower, or to loans made by the Georgia Housing and Finance Authority, the Urban Residential Finance Authority of the City of Atlanta, or other similar state or local authorities.
(k) This Code section shall not be applicable to loans on or secured by real property utilized as residential dwelling units as that term is used in subsection (d) of this Code section, which loans are made by an employer to an employee as an employment benefit.
(l) In addition to the fee authorized by paragraph (3) of subsection (b) of this Code section, a lender may charge and collect a fee to recover the actual costs incurred by the lender in obtaining a credit report on the person to whom the real estate would be sold or transferred in instances where the borrower has requested to be relieved from liability for the indebtedness as well as in instances where the borrower has not made such request, but no investigation by the lender to determine credit worthiness shall authorize the lender to withhold approval or disapproval of the sale or transfer of the real estate beyond the time limitation specified in paragraph (5) of subsection (b) of this Code section.
(m) Nothing in this Code section shall be construed to limit the right of a lender to increase or decrease the interest rate on the indebtedness so long as such increase or decrease is effected pursuant to the terms contained in the security instrument or the note secured thereby or by mutual agreement between borrower and lender, provided that such increase or decrease is not the result of the sale or transfer of the property securing such indebtedness or the assumption of the indebtedness, unless such increase upon a sale or transfer of such property or assumption of the indebtedness is otherwise permitted by this Code section.
After having made a mortgage deed to personal property or a bill of sale to secure debt, any person who sells or otherwise disposes of the property or causes the property to be moved outside of the state before the payment of the mortgage debt or the debt secured by the bill of sale without the consent of and with intent to defraud the mortgagee shall be guilty of a misdemeanor if loss is thereby sustained by the holder of the mortgage or bill of sale.
After having given a bill of sale to secure debt or other security instrument to any motor vehicle, it shall be unlawful for any person to sell or otherwise dispose of the motor vehicle or to cause the motor vehicle to be moved outside of the state before the payment of the debt secured by the security instrument if the sale, disposition, or removal is without the consent of and with the intent to defraud the holder of the security instrument and if loss is thereby sustained by the holder of the security instrument. Any person who is convicted of violating this Code section shall be imprisoned for not less than one year nor more than three years.
Any mortgagor, any giver of a purchase money lien, a lien for rent, or any lien created by contract between the parties, or the holder or possessor of any property under such mortgage or liens who runs off, removes, hides, or in any way disposes of the property under the mortgage or lien so as to hinder, delay, or prevent the levying officer of the county of the defendant's bona fide residence from levying on the property covered by the mortgage or lien by virtue of the foreclosure of the mortgage or lien shall be guilty of a misdemeanor. The venue shall be in the county of the defendant's bona fide residence where the search is made.
Any person who intentionally aids or abets in any violation of Code Section 44-14-8 shall be guilty of a misdemeanor as principal in the county where he aided and abetted in the offense, and his trial and conviction shall not be dependent on the trial and conviction of any other person connected therewith.
When any person who violates Code Section 44-14-8, 44-14-9, or 44-14-11 has no permanent place of abode in this state, search may be made in any county into which or through which the property has been carried. Upon the failure to find the property upon which to levy, prosecution may be had against such person in any such county; and such person shall be guilty of a misdemeanor.
When a search has been made in any of the cases provided by Code Sections 44-14-8 through 44-14-10 by the levying officer for the purpose of levying the execution and the property described therein is not found at the defendant's home, if the defendant fails or refuses to direct the levying officer to the property, the officer shall enter a nulla bona; and the testimony of the officer or the entry of a nulla bona when properly proven shall shift the burden of proof to defendant.
Any person who defrauds another in the sale or disposition of any property, either real or personal, by falsely representing that the property is not subject to any lien while knowing that the property is subject to a lien or any person who fraudulently makes a second deed of conveyance to any land or real estate shall be guilty of a misdemeanor.
(a) As used in this Code section, the term:
(1) “Borrower” means the maker of the promissory note evidencing the loan to be delivered at the loan closing.
(2) “Collected funds” means funds deposited, finally settled, and credited to the settlement agent's escrow account.
(3) “Disbursement of settlement proceeds” means the payment of all proceeds of the transaction by the settlement agent to the persons entitled thereto.
(4) “Lender” means any person or entity regularly engaged in making loans secured by mortgages or deeds to secure debt on real estate.
(5) “Loan closing” means the time agreed upon by the borrower and the lender when the execution and delivery of loan documents by the borrower occurs.
(6) “Loan documents” means the note evidencing the debt due to the lender, the deed to secure debt or mortgage securing the debt due to the lender, and any other documents required by the lender to be executed by the borrower as part of the transaction.
(7) “Loan funds” means the gross or net proceeds of the loan to be disbursed by or on behalf of the lender at the loan closing.
(8) “Party” or “parties” means the seller, purchaser, borrower, lender, and settlement agent, as applicable to the subject transaction.
(9) “Settlement” means the time when the settlement agent has received the duly executed deed to secure debt and other loan documents and funds required to carry out the terms of the contracts between the parties.
(10) “Settlement agent” means the lender or an active member of the State Bar of Georgia responsible for conducting the settlement and disbursement of the settlement proceeds.
(b) This Code section shall apply only to transactions involving purchase money loans made by a lender, or refinance loans made by the current or a new lender, which loans will be secured by deeds to secure debt or mortgages on real estate within the State of Georgia containing not more than four residential dwelling units, whether or not such deeds to secure debt or mortgages have a first-priority status.
(c) Except as otherwise provided in this Code section, a settlement agent shall not cause a disbursement of settlement proceeds unless such settlement proceeds are collected funds. A settlement agent may disburse settlement proceeds from its escrow account after receipt of any of the following negotiable instruments even though the same are not collected funds:
(1) A cashier's check, as defined in subsection (g) of Code Section 11-3-104, from a federally insured bank, savings bank, savings and loan association, or credit union and issued by a lender for a closing or loan transaction, provided that such funds are immediately available and cannot be dishonored or refused when negotiated or presented for payment;
(2) A check drawn on the escrow account of an attorney licensed to practice law in the State of Georgia or on the escrow account of a real estate broker licensed under Chapter 40 of Title 43, if the settlement agent has reasonable and prudent grounds to believe that the check will constitute collected funds in the settlement agent's escrow account within a reasonable period;
(3) A check issued by the United States of America or any agency thereof or the State of Georgia or any agency or political subdivision, as such term is defined in Code Section 50-15-1, of the State of Georgia; or
(4) A check or checks in an aggregate amount not exceeding $5,000.00 per loan closing.
For purposes of this Code section, the instruments described in paragraphs (1) through (4) of this subsection are negotiable instruments if they are negotiable in accordance with the provisions of Code Section 11-3-104.
(d) The lender shall at or before the loan closing deliver loan funds to the settlement agent in the form of collected funds or in the form of a negotiable instrument described in subsection (c) of this Code section; provided, however, that in the case of refinancing, or any other loan where a right of rescission applies, the lender shall, prior to the disbursement of the settlement proceeds and no later than 11:00 A.M. eastern standard time or eastern daylight time, whichever is applicable, of the next business day following the expiration of the rescission period required under the federal Truth in Lending Act (15 U.S.C. Section 1601, et seq.), deliver loan funds to the settlement agent in one or more of the forms set forth in this Code section.
(e) Any party violating this Code section shall be liable to any other party suffering a loss due to such violation for such other party's actual damages plus reasonable attorneys' fees. In addition, any party violating this Code section shall pay to the party suffering the loss an amount of money equal to $1,000.00 or double the amount of interest payable on the loan for the first 60 days after the loan closing, whichever is greater.
(f) Any individual, corporation, partnership, or other entity conducting the settlement and disbursement of loan funds, when he, she, or it is not the settlement agent, shall be guilty of a misdemeanor.
(g) Nothing contained in this Code section shall prevent a real estate broker or real estate salesperson from exercising the rights and providing the duties and services specified by Chapter 40 of Title 43.
(a) For purposes of this Code section, the term:
(1) “Agent” means an individual with a place of business in this state at which he or she is authorized to accept inquiries, notices, and service of process on behalf of a vacant or foreclosed real property owner.
(2) “Department” means the Department of Community Affairs.
(3) “Foreclosed real property” means improved or unimproved real property held pursuant to a judicial or nonjudicial foreclosure of a mortgage, deed of trust, security deed, deed to secure debt, or other security instrument securing a debt or obligation owed to a creditor or a deed in lieu of foreclosure in full or partial satisfaction of a debt or obligation owed to a creditor.
(4) “Street address” means the street or route address. Such term shall not mean or include a post office box.
(5) “Vacant real property” means real property that:
(A) Is intended for habitation, has not been lawfully inhabited for at least 60 days, and has no evidence of utility usage within the past 60 days; or
(B) Is partially constructed or incomplete, without a valid building permit.
Such term shall not include a building or structure containing multiple units with common ownership that has at least one unit occupied with evidence of utility usage.
(b) Effective July 1, 2012:
(1) A county or municipal corporation may establish by ordinance or resolution for the requirement of registration of vacant or foreclosed real property as provided in this Code section;
(2) Notwithstanding county or municipal ordinances or resolutions that require registration for repeated ordinance violations that remain uncorrected for at least 90 days, no county or municipal corporation shall require registration of vacant property or real property that is unoccupied, uninhabited, abandoned, foreclosed, or advertised for foreclosure on any basis other than as set forth in this Code section or as may be otherwise authorized by general law; and
(3) No county or municipal corporation shall require for purposes of a vacant or foreclosed real property registry established pursuant to this Code section any information or documentation other than as set forth in this Code section.
Any requirements of a vacant or foreclosed real property registry established by a county or municipal ordinance or resolution in effect as of July 1, 2012, that are in conflict with the requirements of this Code section shall be hereby preempted.
(c) Each registrant shall be required to file with a specifically identified office or officer a registration form, in paper or electronic format, as required by the county or municipal corporation, requiring submission of only the following information:
(1) The real property owner's name, street address, mailing address, phone number, facsimile number, and e-mail address;
(2) The agent's name, street address, mailing address, phone number, facsimile number, and e-mail address;
(3) The real property's street address and tax parcel number;
(4) The transfer date of the instrument conveying the real property to the owner; and
(5) At such time as it becomes available, recording information, including deed book and page numbers, of the instrument conveying the real property to the owner.
(d) The department may promulgate a standard vacant or foreclosed real property registry form that requires only the information set forth in subsection (c) of this Code section, in paper and electronic format. If such form is promulgated by the department, all counties and municipal corporations with a vacant or foreclosed real property registry shall use such form.
(e)(1) When any real property is acquired by foreclosure under power of sale pursuant to Code Section 44-14-160 or acquired pursuant to a deed in lieu of foreclosure and:
(A) The deed under power of sale or deed in lieu of foreclosure contains the information specified in paragraphs (1) through (5) of subsection (c) of this Code section;
(B) The deed is filed with the clerk of superior court within 60 days of the foreclosure sale or transfer of the deed in lieu of foreclosure; and
(C) Proof of the following is provided to the office or officer in charge of the county or municipal foreclosed real property registry:
(i) A filing date stamp or a receipt showing payment of the applicable filing fees; and
(ii) The entire deed under power of sale or entire deed in lieu of foreclosure,
a county or municipal corporation shall not require the transferee to register such foreclosed real property pursuant to this Code section or the payment of any administrative fees pursuant to subsection (h) of this Code section.
(2) No county or municipal corporation may require registration of vacant or foreclosed real property pursuant to this Code section within 90 days of such real property's transfer:
(A) Pursuant to a deed under power of sale or deed in lieu of foreclosure; or
(B) To the first subsequent transferee after the vacant real property has been acquired by foreclosure under power of sale pursuant to Code Section 44-14-160 or acquired pursuant to a deed in lieu of foreclosure.
(f) An ordinance or resolution establishing a registry pursuant to this Code section may require a vacant or foreclosed real property owner to update the information specified in paragraphs (1) through (5) of subsection (c) of this Code section within 30 days after any change in such required information regardless of whether the information provided to the registry was in the deed under power of sale or deed in lieu of foreclosure.
(g) A vacant or foreclosed real property owner, or the agent of such owner, may apply to remove such vacant or foreclosed real property from the registry at such time as the real property no longer constitutes vacant or foreclosed real property. The county or municipal corporation shall grant or deny such application within 30 days, and if no such determination is made within 30 days, the application shall be deemed granted.
(h) An ordinance or resolution establishing a vacant or foreclosed real property registry may require the payment of administrative fees for registration which shall reasonably approximate the cost to the county or municipal corporation of the establishment, maintenance, operation, and administration of the registry. Such fees shall not exceed $100.00 per registration.
(i) An ordinance or resolution establishing a vacant or foreclosed real property registry may require penalties for failure to register or failure to update the information specified in paragraphs (1) through (5) of subsection (c) of this Code section, provided that such penalties shall not exceed $1,000.00.
(j) A county or municipal ordinance or resolution requiring the registration of vacant or foreclosed real property shall provide for administrative procedures. The administrative procedures shall include the right to appeal to the municipal or recorder's court in the city where the vacant or foreclosed real property is located or to the magistrate or recorder's court of the county in which the vacant or foreclosed real property is located, subject to applicable jurisdictional requirements. Any vacant or foreclosed real property owner affected by a county or municipal ordinance or resolution requiring vacant or foreclosed real property registration may challenge any determination made pursuant to such ordinance or resolution.
(k) An ordinance or resolution adopted by the governing authority of a county to establish a registry pursuant to this Code section may, subject to and in accordance with the requirements of this Code section, require registration of vacant or foreclosed real property within the entire territory of the county, except territory located within the boundaries of any municipal corporation, unless otherwise allowed by intergovernmental agreement between the county and municipal corporation.
(l) Nothing in this Code section shall be construed to prohibit a county or municipal ordinance or resolution requiring the registration of vacant or foreclosed real property from providing for exemptions from such registration.
(m) Nothing in this Code section shall be construed to impair, limit, or preempt in any way the power of a county or municipal corporation to enforce any applicable codes, as defined in Code Section 42-2-8, or to define or declare nuisances and to cause their removal or abatement by summary proceedings or otherwise.
(n) Notwithstanding Code Section 36-74-30, an ordinance or resolution establishing a vacant or foreclosed real property registry may require the registration of residential rental property if such property is vacant or foreclosed real property.
(a) As used in this Code section, the term “conveyance of real property” means a conveyance or other transfer of an interest or estate in real property.
(b) A restriction or covenant running with the land applicable to the conveyance of real property that requires a transferee or transferor of real property, or the transferee's or transferor's heirs, successors, or assigns, to pay a declarant, other person imposing the restriction or covenant on the property, or a third party designated by such declarant or other person, or a successor, assignee, or designee of such declarant, third party, or other person, a fee in connection with a future transfer of the property shall be prohibited. A restriction or covenant running with the land that violates this Code section or a lien purporting to encumber the land to secure a right under a restriction or covenant running with the land that violates this Code section shall be void and unenforceable.
(c) This Code section shall not apply to a restriction or covenant that requires a fee associated with the conveyance of real property to be paid to:
(1) An association formed for the purposes of exercising the powers of the association of any condominium created pursuant to Article 3 of Chapter 3 of this title, the “Georgia Condominium Act”;
(2) A property owners' association formed for the purposes of exercising the powers of the property owners' association pursuant to Article 6 of Chapter 3 of this title, the “Georgia Property Owners' Association Act”;
(3) A property owners' association formed for the purposes of exercising the powers of an association of property owners that has not been formed pursuant to or which has not adopted the provisions of Article 6 of Chapter 3 of this title, the “Georgia Property Owners' Association Act,” provided that such association shall comply with subsection (d) of Code Section 44-3-232;
(4) A person or entity under the general supervision of the Public Service Commission as provided for in subsection (a) of Code Section 46-2-20, provided that such fee is charged for expenses incurred in the administration of ongoing services or rights provided to the property interest conveyed;
(5) A community land trust or community development corporation that is tax-exempt under Section 501(c)(3) or 501(c)(4) of the federal Internal Revenue Code, provided that such fee is charged for and applied to expenses incurred in the administration of ongoing community program services or rights provided to shared equity property interests within, as applicable, the land subject to the community land trust or the geographic area served by the community development corporation; or
(6) A party to a purchase contract, option, real property listing agreement, or other agreement which obligates one party to the agreement to pay the other, as full or partial consideration for the agreement or for a waiver of rights under the agreement, an amount determined by the agreement if such amount constitutes a fee or commission paid to a licensed real estate broker for brokerage services rendered in connection with the transfer of the property for which such fee or commission is paid.
A mortgage in this state is only security for a debt and passes no title.
No particular form is necessary to constitute a mortgage. However, a mortgage must clearly indicate the creation of a lien and must specify the debt for which it is given and the property upon which it is to take effect.
A deed or bill of sale which is absolute on its face and which is accompanied with possession of the property shall not be proved, at the instance of the parties, by parol evidence to be a mortgage only unless fraud in its procurement is the issue to be tried.
In order to admit a mortgage to record, it shall be signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness. In the absence of fraud, if a mortgage is duly signed, witnessed, filed, recorded, and indexed on the appropriate county land records, such recordation shall be deemed constructive notice to subsequent bona fide purchasers.
When executed outside this state, mortgages shall be signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness.
Mortgages on realty shall be recorded in the county where the land is located. Where a mortgage upon realty is executed to secure the payment of money or other thing of value and the same is not recorded as provided by law but the mortgage is renewed or reexecuted, the mortgage shall operate as a lien upon the property of the mortgagor only against the mortgagor himself and those having actual notice of the mortgage except from the date of the record of such mortgage.
A mortgage or bill of sale to secure debt may embrace all property in possession, or to which the mortgagor or grantor has the right of possession at the time. A mortgage or bill of sale to secure debt given by a person or a corporation to a trustee or trustees to secure an issue of bonds shall, when it is expressly so stipulated therein, embrace, cover, and convey title to after-acquired property of such person or corporation. Provided, however, any public utility company, whether or not incorporated, including, without limitation, any corporation organized under or governed by the provisions of Article 4 of Chapter 3 of Title 46, may by mortgage, bill of sale to secure debt, deed to secure debt, or deed of trust, embrace, cover, convey, pledge, and encumber after-acquired property of such company, wherever located, when the instrument expressly so stipulates therein; and any such instrument when recorded as provided by law shall constitute notice from the time it is filed for record and shall have priority (subject to purchase money encumbrances) as against the interests of third parties with respect to after-acquired property from the time such property is acquired.
(a) A mortgage, deed to secure debt, indenture, deed of trust, or other security agreement or any supplement or amendment thereto relating to real property made by a railroad corporation, electric or gas corporation, other public utility corporation, or any corporation or other entities engaged in the furnishing of telephone service or the production, transmission, or distribution of electricity or made by any receivers, trustees, or other legal officers in possession of or operating any such corporation or other entity shall be recorded on the real property records in the office of the clerk of the superior court in each county in this state in which any of the property is located. Any such security agreement or any supplement or amendment thereto shall be valid only from the time it is filed for record against subsequent creditors, grantees, purchasers, and mortgagees acting in good faith and without notice. Such instruments need not otherwise be filed or refiled except as may be provided by Chapter 3 of Title 40. To the extent that any mortgage, deed to secure debt, indenture, deed of trust, or other security agreement or any supplement or amendment thereto executed before April 8, 1968, has been filed or recorded as provided in this Code section, it need not be refiled or rerecorded under this Code section; and nothing in this Code section shall be deemed to impair the lien or effect of any such instrument executed prior to April 8, 1968, which instrument has been recorded or filed in accordance with the laws of this state applicable thereto prior to April 8, 1968.
(b) A security interest relating to fixtures and personal property of such a corporation shall be perfected as provided in Code Sections 11-9-501 through 11-9-504. Any such prior filing or recording that has been entered on the Uniform Commercial Code index for secured transactions, where no notice of conflict of lien or notice of creditor priority has been given, shall be valid and any such instruments need not otherwise be refiled, rerecorded, or reindexed.
A mortgage which is recorded in an improper office or without due attestation or probate or which is so defectively recorded as not to give notice to a prudent inquirer shall not be held to be notice to subsequent bona fide purchasers. A mere formal mistake in the record shall not vitiate it.
All the rules prescribed for the probate of deeds to land when the witnesses are dead, insane, or removed from the state and all the rules prescribed for the acknowledgment before or attestation by consuls or commissioners shall apply to the probate of mortgages.
There shall be no tacking of mortgages.
Mortgages may be taken by sureties and guarantors to indemnify them against loss.
If the possession of real property shall be given to the mortgagee, the mortgagor may redeem at any time within ten years from the last recognition by the mortgagee of such right of redemption.
The fact that a note or other evidence of debt is barred does not prevent a creditor from thereafter availing himself of the mortgage or other security unless the mortgage or other security itself is barred.
Subject to the lien of the mortgage, mortgaged property may be sold under other process. If the mortgage is foreclosed, the mortgagee may place his execution in the hands of the officer making the sale, may cause the unencumbered title to be sold, and may claim the proceeds according to the date of his lien.
Purchasers at public sales of personal property subject to the lien of a mortgage shall give bond and security in double the value of the property to the officer making the sale and conditioned not to remove the property from the state and for its forthcoming answer to the lien; provided, however, that prior to the sale the mortgagee or his or her agent shall file with the officer an affidavit stating the amount due on the mortgage and that he or she expects the loss of the property unless the bond is taken. On failure to give the bond, the property shall be resold at the risk of the purchaser.
If other writs of fieri facias are levied on mortgaged property and the property is sold, the mortgage fi. fa. may nevertheless claim the proceeds of the sale if its lien is superior.
If a mortgage on realty or personalty is not foreclosed and the equity of redemption is levied on by other writs of fieri facias by consent of the mortgagor and mortgagee and the plaintiff in the fi. fa. levied, the entire estate may be sold and the mortgagee may claim under his lien in the same manner as if his mortgage were foreclosed.
If there are several mortgages of equal rank or if separate amounts due to distinct persons are embraced in the same mortgage and one mortgagee forecloses, the court will control the proceeds of the sale for distribution to the several mortgagees according to their claims.
The holder of any mortgage of real or personal property or both, whether as original mortgagee or as executor, administrator, or assignee of the original mortgagee, may foreclose the mortgage in equity according to the practice of the courts in equitable proceedings as well as by the methods prescribed in this chapter.
Whenever any person in this state conveys any real property by deed to secure any debt to any person loaning or advancing the grantor any money or to secure any other debt and takes a bond for title back to the grantor upon the payment of the debt or debts or in like manner conveys any personal property by bill of sale and takes an obligation binding the person to whom the property is conveyed to reconvey the property upon the payment of the debt or debts, the conveyance of real or personal property shall pass the title of the property to the grantee until the debt or debts which the conveyance was made to secure shall be fully paid. Such conveyance shall be held by the courts to be an absolute conveyance, with the right reserved by the grantor to have the property reconveyed to him upon the payment of the debt or debts intended to be secured agreeably to the terms of the contract, and shall not be held to be a mortgage. No bond for title or to reconvey shall be necessary where the deed shows upon its face that it is given to secure a debt.
In order to admit deeds to secure debt or bills of sale to secure debt to record, they shall be signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness.
When executed outside this state, deeds to secure debt and bills of sale to secure debt shall be signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness.
(a) Every deed to secure debt shall be recorded in the county where the land conveyed is located. Every bill of sale to secure debt shall be recorded in the county where the maker, if a resident of this state, resided at the time of its execution and, if a nonresident, in the county where the personalty conveyed is located. Deeds to secure debt or bills of sale to secure debt not recorded shall remain valid against the persons executing them.
(b) A deed to secure debt shall not be recorded unless it includes the following information on the first page:
(1) The date of the document;
(2) The names of the signatories of the document;
(3) The grantee's mailing address;
(4) Map and parcel identification information, if applicable;
(5) The original loan amount or the amount of any outstanding principal and additional advance pursuant to a loan modification;
(6) The initial maturity date or dates for such debt;
(7) The amount, if any, of the intangible recording tax imposed on such deed to secure debt;
(8) The amount, if any, of the intangible recording tax imposed for an additional advance pursuant to a security deed modification agreement or other additional advance secured by a security deed; and
(9) If no intangible tax is imposed, a citation to the authority providing for an exemption of such tax.
(c) Failure to comply with this Code section shall not be a defense to any foreclosure or grounds to set aside any foreclosure of any deed to secure debt.
(a) All transfers of deeds to secure debt shall be in writing; shall be signed by the grantee or, if the deed has been previously transferred, by the last transferee; and shall be witnessed as required for deeds.
(b) Transfers of deeds to secure debt may be endorsed upon the original deed or by a separate instrument identifying the transfer and shall be sufficient to transfer the property therein described and the indebtedness therein secured, whether the indebtedness is evidenced by a note or other instrument or is an indebtedness which arises out of the terms or operation of the deed, together with the powers granted without specific mention thereof.
(c) Transfer of a deed to secure debt and the indebtedness therein secured may be made in whole or in part; provided, however, that, where the transfer is made in part, that portion of the deed and the indebtedness therein secured to be transferred shall be stated upon a separate instrument and not upon the original deed.
(d) A transfer of a deed to secure debt and the indebtedness therein secured in whole or in part in accordance with subsections (a) through (c) of this Code section by a financial institution having deposits insured by an agency of the federal government or a transfer by a lender who regularly purchases or services residential real estate loans aggregating a minimum of $1 million secured by a first deed to secure debt encumbering real estate improved or to be improved by the construction thereon of one to four family dwelling units, where the transferor retains the right to service or supervise the servicing of the deed or interest therein, need not be recorded if:
(1) The original deed to secure debt has been recorded;
(2) An agreement in writing exists on or before the date of the transfer between the transferor and the transferee and sets forth the terms of the transfer and the interests of the parties thereto; and
(3) Possession of the deed, the instrument of indebtedness, and the instrument of transfer is taken by such new transferee for himself or in his representative capacity or by a representative of such transferee which may include the transferor or any other transferee, provided that the agreement in paragraph (2) of this subsection provides for such party to take possession.
(e) As described in subsection (d) of this Code section, the transfer by a financial institution or lender of a deed to secure debt and the indebtedness therein secured in whole or in part without recording in accordance with this Code section shall be effective to provide the new transferee with priority over all subsequent claims against the deed and the indebtedness therein secured to the extent of the interest so transferred, and the priority shall not be lessened by the fact that the transfer is not recorded; provided, however, that a transfer, satisfaction, cancellation, release, quitclaim deed, or modification executed and recorded by the holder of record of the deed to secure debt shall be effective to transfer, satisfy, cancel, release, quitclaim, or modify, as the case may be, all interest of the holder of record of the deed to secure debt and all interest of all transferees claiming by, through, or under the holder of record of the deed to secure debt.
(f) Where the holder of the right to service or supervise the servicing of the transferred deed to secure debt and the indebtedness therein secured is a financial institution or lender as described in subsection (d) of this Code section, it shall have the same rights, responsibilities, and obligations to act in all matters concerning the servicing, administration, and cancellation of the deed and indebtedness as to third parties as if no such transfer had taken place.
(g) A transfer of a deed to secure debt shall not be recorded unless it includes the mailing address of the last transferee thereof. Failure to comply with this provision shall not be a defense to any foreclosure or grounds to set aside any foreclosure of any deed to secure debt.
(h) A grantor or his transferee shall be entitled to receive without charge a payoff balance from the holder of a deed to secure debt on real property by requesting in writing said balance and providing a self-addressed stamped envelope.
The grantor's right to a reconveyance of the property upon complying with the contract shall not be affected by any liens, encumbrances, or rights which would otherwise attach to the property by virtue of the title being in the grantee; but the right of the grantor to a reconveyance shall be absolute and permanent upon his complying with his contract with the grantee according to the terms. In the event of the prior death of the grantor, such a reconveyance shall be valid and effective to vest title in the heirs, personal representatives, or successors in title of the deceased grantor as their interests may appear.
(a) In all cases where property is conveyed to secure a debt, the surrender and cancellation of the deed, in the same manner as mortgages are canceled, on payment of the debt to any person legally authorized to receive the same, shall operate to reconvey the title of the property to the grantor or the grantor's heirs, executors, administrators, or assigns.
(b) In the case of a deed to secure debt which applies to real property, in order to authorize the clerk of superior court to show the original instrument as canceled of record, there shall be presented for recording:
(1) A cancellation upon the original security deed itself;
(2) A conveyance from the record holder of the security deed, which conveyance is in the form of a quitclaim deed or other form of deed suitable for recording and which refers to the original security deed; or
(3) A cancellation as provided in subsection (c) of this Code section.
Any clerk of superior court who cancels of record any deed to secure debt in the manner authorized in this subsection shall be immune from any civil liability, either in such clerk's official capacity or personally, for so canceling of record such security deed.
(c) Cancellation of a security deed, the original of which has been lost, stolen, or otherwise mislaid, may be made based upon a document executed by the owner of the security interest and who so swears in such document, which document shall be recorded and shall be in substantially the following form:
“_____ County, Georgia
The indebtedness referred to in that certain deed to secure debt from _____ to _____, dated _____, and of record in Deed Book _____, Page _____, in the office of the clerk of the Superior Court of _____ County, Georgia, having been paid in full and the undersigned being the present owner of such secured interest by virtue of being the original grantee or the heir, assign, transferee, or devisee of the original grantee, the clerk of such superior court is authorized and directed to cancel that deed of record as provided in Code Section 44-14-4 of the O.C.G.A. for other mortgage cancellations.
In witness whereof, the undersigned has set his or her hand and seal, this _____ day of _____, _____.
| | _________________________________ (SEAL) | | --- | --- | | | Signature | | Signed, sealed, and delivered | | | on the date above shown | | | ____________________ | | | Unofficial Witness | | | ____________________ | | | Notary Public | | | (SEAL) | | | | | | My commission expires: ________________________________________” | |
(a) Title to real property conveyed to secure a debt or debts shall revert to the grantor or the grantor's heirs, personal representatives, successors, and assigns as follows:
(1) Title to real property conveyed to secure a debt or debts shall revert to the grantor or his or her heirs, personal representatives, successors, and assigns at the expiration of seven years from the maturity of the debt or debts or the maturity of the last installment thereof as stated or fixed in the record of the conveyance or, if not recorded, in the conveyance; provided, however, that where the parties by affirmative statement contained in the record of conveyance intend to establish a perpetual or indefinite security interest in the real property conveyed to secure a debt or debts, the title shall revert at the expiration of the later of (A) seven years from the maturity of the debt or debts or the maturity of the last installment thereof as stated or fixed in the record of conveyance or, if not recorded, in the conveyance; or (B) 20 years from the date of the conveyance as stated in the record or, if not recorded, in the conveyance;
(2) If the maturity of the debt or debts or the maturity of the last installment thereof is not stated or fixed, title to real property conveyed to secure a debt or debts shall revert at the expiration of seven years from the date of the conveyance as stated in the record or, if not recorded, in the conveyance; provided, however, that where the parties by affirmative statement contained in the record of conveyance intend to establish a perpetual or indefinite security interest in the real property conveyed to secure a debt or debts, the title shall revert at the expiration of 20 years from the date of the conveyance as stated in the record or, if not recorded, in the conveyance; or
(3) If the maturity is not stated or fixed and the conveyance is not dated, title to real property conveyed to secure a debt or debts shall revert at the expiration of seven years from the date the conveyance is recorded or, if not recorded, is delivered;
provided, however, that foreclosure by an action or by the exercise of power of sale, if started prior to reversion of title, shall prevent the reversion if the foreclosure is completed without delay chargeable to the grantee or the grantee's heirs, personal representatives, successors, or assigns.
(b) If the grantee or the grantee's personal representatives, heirs, successors, or assigns, or any one of them if more than one, or an officer of a corporation having an interest shall, at any time before the title reverts as provided in subsection (a) of this Code section, make and cause to be recorded upon the record of the conveyance or elsewhere in the public records, with a notation of the place of record of the renewal on the record of the conveyance or, if not recorded, upon the conveyance, a written renewal of the debt or debts secured or the part thereof which are not fully paid and are not barred, which renewal shall be signed by the original grantor or the grantor's heirs, personal representatives, or successors in title to the real estate conveyed and shall be dated, the conveyance and record thereof shall remain of full force and effect and the title shall not revert for an additional period of seven years or 20 years according to the appropriate reversion period stated in subsection (a) of this Code section from the date of the renewal unless the debt or debts are paid sooner.
(c) If the grantee or the grantee's personal representatives, heirs, successors, or assigns, or any of them if more than one, or an officer of a corporation having an interest shall, at any time before the title reverts as provided in subsection (a) of this Code section, make and cause to be recorded upon the record of the conveyance or elsewhere in the public records, with a notation of the place of record thereof on the record of the conveyance or, if not recorded, upon the conveyance, an affidavit setting forth the name and address of the owner and holder of the debt and the deed securing the debt, the nature of the claim, the amount due thereon, the date of the last payment thereon, the maturity date of the indebtedness, and, if the debt has been renewed or extended, the terms of such renewal or extension and a description of the property conveyed therein, the conveyance and record thereof shall remain of full force and effect and title shall not revert for seven years or 20 years according to the appropriate reversion period stated in subsection (a) of this Code section from the maturity of the indebtedness as shown by said affidavit unless the debt or debts are paid sooner.
(d) It shall be the duty of the clerk of the superior court to record the renewals and affidavits provided for and authorized by this Code section; and the clerks shall be entitled to the same fees which are allowed for recording deeds.
(e) Subsections (a) through (d) of this Code section shall not operate to make such conveyance a mortgage, but the conveyance shall be held to be an absolute conveyance of title, subject to reversion.
(f) Nothing in this Code section shall be construed, interpreted, or enforced in a manner which impairs any contract rights under currently existing instruments conveying real property to secure a debt or debts.
Powers of sale in the conveyances of real property to secure debt shall not be exercised after an action to foreclose the instrument is barred. A sale or conveyance under power in such instrument after an action to foreclose the instrument is barred shall be absolutely void and not merely voidable.
No action shall be brought to recover property under a conveyance of real property to secure debt when an action to foreclose and the exercise of power of sale are barred.
No action to foreclose and no action to recover property under a conveyance of real property to secure debt shall be commenced and no power contained in or conferred by a conveyance of real property to secure debt shall be exercised after the title thereby conveyed has reverted as provided in this part.
This part shall not apply in those cases where the grantor or his successors in possession have surrendered possession of the property described in the deed to secure debt to the grantee or his successors in title in settlement of the indebtedness.
(a) The acceleration of the maturity of an indebtedness which is evidenced by a note or otherwise and secured by a deed to secure debt conveying real property and the commencement of foreclosure proceedings by the advertisement of a sale under the power contained in the deed or by an action shall not commence the running of the statute of limitations against the exercise of any right, power, or privilege authorized in the deed or the evidence of the indebtedness secured thereby or the right to bring an action to enforce any provision of the deed or to collect the indebtedness secured thereby if the foreclosure proceedings are withdrawn prior to their completion by sale or otherwise. Such withdrawal shall operate to rescind the acceleration of the maturity of the indebtedness and to reinstate the indebtedness upon the terms and conditions existing prior to the acceleration. Such withdrawal shall not prejudice the right of the holder of the indebtedness and deed securing same to exercise any and all rights to accelerate the maturity of the indebtedness and to exercise any right or power contained in the deed or the evidence of the indebtedness secured thereby or conferred by law should a subsequent default occur.
(b) Nothing contained in subsection (a) of this Code section shall prevent, restrict, or otherwise impair the exercise of any other right or privilege conferred by law; but the rights contained in subsection (a) of this Code section shall be cumulative and in addition thereto.
(a) The planting, growing, cultivating, harvesting, and marketing of trees and the fruits and products thereof shall be considered and treated under the laws of this state as an agricultural pursuit.
(b) Every original producer or manufacturer of crude gum, oleoresin, from which is derived or may be derived gum spirits of turpentine and gum resin, and his or her employees are declared to be, for all intents and purposes, farmers insofar as any law of this state relates to farming and farmers.
All matured or unmatured crops are declared to be personalty.
Whenever any person has conveyed real property in this state by a deed to a trustee to secure the payment of a note or notes, bonds, or other debt owing to one or more persons, the rights of the trustee named in the deed or his successor in estate, as well as the rights of the holders or owners of the notes or other debts in the real property, may be enforced in the following manner:
(1) The trustee named in the deed or his successor in estate entitled to enforce the deed may, upon the request of the holders or owners of at least two-thirds of the indebtedness thereby secured but not otherwise, petition the superior court of the county of the residence of the maker of the deed or, if there is more than one maker, the superior court of the county of the residence of either or, if the maker or makers are nonresidents of the state, the superior court of the county wherein the land or any part thereof conveyed by the deed is located or the city court, if any, in the county having jurisdiction of the amount claimed in the petition. The petition shall contain a statement of the case, the amounts demanded, and a description of the property covered by the deed to secure such demands; and
(2) Upon the petition being filed, the court shall grant an order directing the sums demanded in the petition, together with interest and costs, to be paid into the court on or before the first day of the next term immediately succeeding the one at which the order is granted, which order shall be published once a week for four weeks in some newspaper generally circulated in the county or shall be served on the maker of the deed or his special agent or attorney at least 20 days prior to the time at which the money is directed to be paid into the court.
When an order for the payment of the sums demanded in the petition has been granted and published or served as provided in Code Section 44-14-120, the maker of the deed sought to be enforced or his special agent or attorney may appear on or before the first day of the term of the court at which the money is directed to be paid and file his objection to the enforcement of the deed and may set up and avail himself of any defense which he might lawfully set up in an ordinary action on the debts or demands secured by the deed and which defense shows that the petitioner is not entitled to enforce the demands or debts or that the amounts claimed are not due; provided, however, the facts of the defense shall be verified by the affidavit of the maker of the deed or his special agent or attorney at the time of filing the defense.
When the maker of the deed is dead, the proceedings to enforce the deed may be instituted against his executor or administrator.
When proceedings to enforce a deed of trust are instituted and a defense is set up thereto as provided in Code Section 44-14-121, the issues thus raised shall be tried as other issues are tried in the court in which the proceedings were instituted.
When the maker of the deed, after being directed so to do, fails to pay the sums demanded in the petition together with interest and costs as required by Code Section 44-14-120 and also fails to set up and sustain his or her defense against the enforcement of the rights of the trustee and the holders or owners of the bonds, notes, or debts secured by the deed, the court shall give judgment for the amounts which may be due under the deed to be levied on the real property covered thereby. Upon the trustees making and recording a deed reconveying the real property to the maker in the office of the clerk of the superior court of the county where the land is located, the court shall order the real property to be sold in the same manner and under the same regulations which govern sheriff's sales under execution; provided, however, that, if the deed is filed and recorded as provided by law, the judgment shall be a lien upon the real property which shall be superior to any claim or lien, except taxes, whatsoever arising or created subsequent to the date of the deed to the trustee.
The money arising from the sale of the property shall be paid to the trustee unless claimed by some other lien which by law may have priority over the deed; and, when there is any surplus after paying the sums due under the deed and other liens, the surplus shall be paid to the maker of the deed or his agent.
If the deed is given to secure debts due by installments and is enforced before any one of the installments falls due and there is a surplus of funds as stated in Code Section 44-14-125, the court may retain the funds or order them to be invested to meet the unpaid installments.
The notice given to third persons by the filing for record of any mortgage, bill of sale to secure debt, retention of title contract, or other security instrument creating a lien on, retaining title to, or conveying an interest in personal property only shall expire at the end of seven years from the date of the filing thereof for record.
The effect regarding third persons of the filing for record of any of the instruments enumerated in Code Section 44-14-140 may in all respects, including the preservation of priority thereof, be extended for successive additional periods, each period not exceeding five years from the date of the filing in the office of the clerk of the superior court wherein any such instrument is recorded, upon the filing by the owner or holder thereof of an affidavit identifying the instrument and stating his interest and the nature and amount unpaid on the obligation still secured thereby. Where the instrument is made to, held, or owned by a trustee or other representative to secure bonds, notes, or other obligations of the maker of the instrument, the affidavit provided for in this Code section may be made and filed by the trustee or other representative.
The clerk of the superior court shall file the affidavit required by Code Section 44-14-141, reindex the instrument mentioned in the affidavit, and enter on the margin of the record of the instrument a reference to the filing of the affidavit, which shall state the date of the filing of the affidavit and the amount unpaid on the obligation secured by the instrument, for which services the clerk shall be entitled to a fee as required by Article 2 of Chapter 6 of Title 15.
The notice given by the filing of any mortgage, bill of sale to secure debt, retention of title contract, or other security instrument creating a lien on, retaining title to, or conveying an interest in personal property which is filed or recorded prior to March 31, 1937, shall not extend more than seven years from March 31, 1937, unless within seven years from March 31, 1937, an affidavit is filed, the instrument reindexed, and the marginal reference made on the record thereof as provided in Code Section 44-14-142.
This article shall not apply to any mortgage, bill of sale to secure debt, retention of title contract, deed of trust, or other security instrument creating a lien on, retaining title to, or conveying an interest in property owned by, sold or leased to, or agreed to be sold or leased to any railroad corporation, street railroad corporation, electric or gas corporation, or other public utility corporation or any receivers, trustees, or other legal officers in possession of or operating any railroad corporation, street railroad corporation, electric or gas corporation, or other public utility corporation.
(a) Within 90 days of a foreclosure sale, all deeds under power shall be filed by the holder of a deed to secure debt or a mortgage with the clerk of the superior court of the county or counties in which the foreclosed property is located. The clerk shall record and cross reference the deed under power to the deed to secure debt or mortgage foreclosed upon. The deed under power shall be indexed pursuant to standards promulgated by the Georgia Superior Court Clerks' Cooperative Authority.
(b) In the event the deed under power is not filed within 30 days after the time period set forth in subsection (a) of this Code section, the holder shall be required to pay a late filing penalty of $500.00 upon filing in addition to the required filing fees provided for in subsection (f) of Code Section 15-6-77. Such late filing penalty shall be collected by the clerk of the superior court before filing.
(c) The sums collected as a late filing penalty under subsection (b) of this Code section shall be remitted to the governing authority of the county. If the foreclosed property is located within a municipality, the governing authority of the county shall remit the late filing penalty for such property to the governing authority of such municipality within 30 days of its receipt of the penalty. For each late filing penalty for property located within the corporate limits of a municipality, the governing authority of the county may withhold a 5 percent administrative processing fee from the remittance to such municipality.
(a) When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.
(b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.
(c) The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may order a resale of the property for good cause shown.
(a) No sale of real estate under powers contained in mortgages, deeds, or other lien contracts shall be valid unless the sale shall be advertised and conducted at the time and place and in the usual manner of the sheriff's sales in the county in which such real estate or a part thereof is located and unless notice of the sale shall have been given as required by Code Section 44-14-162.2. If the advertisement contains the street address, city, and ZIP Code of the property, such information shall be clearly set out in bold type. In addition to any other matter required to be included in the advertisement of the sale, if the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor to a new owner and an assumption by the new owner of the debt secured by said mortgage, security deed, or lien contract has been approved in writing by the secured creditor, then the advertisement should also include a recital of the fact of such transfer or conveyance and the name of the new owner, as long as information regarding any such assumption is readily discernable by the foreclosing creditor. Failure to include such a recital in the advertisement, however, shall not invalidate an otherwise valid foreclosure sale.
(b) The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located.
As used in Code Sections 44-14-162.2 through 44-14-162.4, the term “debtor” means the grantor of the mortgage, security deed, or other lien contract. In the event the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor, the term “debtor” shall mean the current owner of the property encumbered by the debt, if the identity of such owner has been made known to and acknowledged by the secured creditor prior to the time the secured creditor is required to give notice pursuant to Code Section 44-14-162.2.
(a) Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. The notice required by this Code section shall be deemed given on the official postmark day or day on which it is received for delivery by a commercial delivery firm. Nothing in this subsection shall be construed to require a secured creditor to negotiate, amend, or modify the terms of a mortgage instrument.
(b) The notice required by subsection (a) of this Code section shall be given by mailing or delivering to the debtor a copy of the notice of sale to be submitted to the publisher.
No waiver or release of the notice requirement of Code Section 44-14-162.2 shall be valid when made in or contemporaneously with the security instrument containing the power of nonjudicial foreclosure sale; but, notwithstanding the requirements of Code Sections 44-14-162.1, 44-14-162.2, this Code section, and Code Section 44-14-162.4, a subsequent quitclaim deed in lieu of foreclosure shall be valid and effective as such.
All deeds under power shall contain recitals setting forth the giving of notice in compliance with Code Section 44-14-162.2. The effect of such recitals shall be to protect the validity of the title of any subsequent purchaser in good faith other than the lender.
When a judgment is rendered upon any obligation secured by a deed to secure debt, a bond for title to realty, or a bill of sale to personalty given under Code Section 44-14-60, the court which rendered the judgment shall have the jurisdiction, power, and authority to vacate and set aside the judgment at any time before the sale of the property described in the deed, bond for title, or bill of sale is made upon the motion of the attorney of the plaintiff in execution and of the attorney of the defendant in execution and the payment of the costs. The jurisdiction, power, and authority to vacate and set aside a judgment as provided in this Code section shall extend to a judgment on a purchase-money note, a conditional sale contract where a title is reserved as security or a bond for title is given, a judgment and decree foreclosing a mortgage, and all other cases where it is necessary under Code Section 44-14-210 to reconvey property to the defendant in execution for the purpose of levy and sale.
Whenever a judgment is so vacated and set aside, the clerk of the court in which it was rendered shall mark the fi. fa. issued on the judgment “canceled”; and the clerk of the superior court shall enter the same upon the general execution docket and make thereon an appropriate reference to the order vacating the judgment. Whenever a judgment is vacated and set aside as provided in Code Section 44-14-163, any deed reconveying the property to the defendant in fi. fa. for the purpose of levy and sale shall be automatically canceled and rendered null and void by virtue of this Code section; and the clerk of the superior court shall enter on the record of such deed or reconveyance, when recorded, the word “canceled” and shall make an appropriate reference to the order vacating the judgment.
When a judgment is vacated and set aside as provided by Code Sections 44-14-163 and 44-14-164, the obligation upon which the judgment was rendered, as well as the deed, bond for title, bill of sale securing the same, and other instruments mentioned in Code Section 44-14-163, shall be fully restored in all respects to their original status which existed prior to the commencement of the action in which the judgment was rendered; and thereafter the instruments shall be for all purposes whatsoever legally of force and effect as if an action had not been instituted and a judgment had not been obtained on the obligation.
Mortgages on real estate may be foreclosed in the following manner:
(1) Any person who applies and who is entitled to foreclose the mortgage shall, by himself or his attorney, petition the superior court of the county wherein the mortgaged property is located, which petition shall contain a statement of the case, the amount of the petitioner's demand, and a description of the property mortgaged;
(2) Upon the filing of the petition, the court shall grant a rule directing that the principal, the interest, and the costs be paid into court. The rule shall be published twice a month for two months or served on the mortgagor or his special agent or attorney at least 30 days prior to the time at which the money is directed to be paid into the court; and
(3) Notwithstanding paragraphs (1) and (2) of this Code section, where the land covered by the mortgage shall consist of a single tract of land divided by a county line or county lines, the mortgage may be foreclosed on the entire tract in either of the counties in which part of it is located; but, if the mortgagor shall reside upon the land, the mortgage shall be foreclosed in the county of his residence.
If the person entitled to foreclose a mortgage on real estate is dead, the application and proceeding to foreclose may be made and prosecuted by his executor or administrator.
An endorsement to order or in blank by the payee of a mortgage note gives the endorsee or the holder for value the right to foreclose the mortgage in his own name. A mortgage transferred without written assignment may be foreclosed in the name of the mortgagee bringing the action for the use of such assignee; and proceedings begun in the name of the transferee may be amended by making the mortgagee a party before or after the judgment.
When the mortgagor is dead, the proceedings to foreclose the mortgage on real estate may be instituted against his executor or administrator.
When a rule nisi to foreclose a mortgage on real estate has been granted and published or served as required in Code Section 44-14-180, the mortgagor or his special agent or attorney may appear at the time at which the money is directed to be paid and file his objections to the foreclosure of the mortgage and may set up and avail himself of any defense which he might lawfully set up in an ordinary action instituted on the debt or demand secured by the mortgage and which defense shows that the applicant is not entitled to the foreclosure sought or that the amount claimed is not due; provided, however, that the facts of the defense shall be verified by the affidavit of the mortgagor or his special agent or attorney at the time of the filing of the affidavit.
If the mortgagor or his special agent or attorney fails to set up a defense as provided in Code Section 44-14-184, it shall not be competent for any third person to interpose a defense and neither will the court itself, of its own motion, do so. However, one who purchases mortgaged property prior to the commencement of statutory proceedings to foreclose and who is not a party to the proceedings is not bound by the judgment of foreclosure and may, when the mortgage fi. fa. is levied, go behind the judgment and set up the defense that the mortgage could not be legally enforced against him whenever this is necessary and proper to establish the claim of title upon which he relies.
When proceedings to foreclose a mortgage shall be instituted and a defense shall be set up thereto, the issue shall be submitted to and tried by a jury.
When the mortgagor, after being directed so to do, fails to pay the principal, interest, and costs as required by Code Section 44-14-230 and fails to set up and sustain his defense against the foreclosure of the mortgage, the court shall give judgment for the amount which may be due on the mortgage and shall order the mortgaged property to be sold in the manner and under the same regulations which govern sheriffs' sales under execution.
After proceedings to foreclose the mortgage have been begun, a purchaser from the mortgagor shall be bound by the judgment of foreclosure.
A purchaser at a void or irregular judicial sale under the foreclosure of a mortgage shall succeed to all of the interests of the mortgagee.
The money arising from the sale of mortgaged property sold under the regulations prescribed in this part shall be paid to the person foreclosing the mortgage unless claimed by some other lien which by law has priority of payment over the mortgage; and, when there is any surplus after paying off the mortgage and other liens, the surplus shall be paid to the mortgagor or his agent.
If the mortgage is given to secure a debt due by installments and is foreclosed before any one of the installments falls due and there is a surplus of funds as provided in Code Section 44-14-190, the court may retain the funds or order them to be invested to meet the unpaid installments.
(a) In cases where a contract to purchase or a bond for title has been made, where purchase money has been partly paid, or where a deed to secure a debt has been executed and the purchase money or secured debt has been reduced to judgment by the payee, assignee, or holder of the debt, the holder of the legal title or, if dead, his executor or administrator, without order of any court, shall make and execute to the defendant in fi. fa. or, if he is dead, to his executor or administrator a quitclaim conveyance to the real or personal property and shall file and have the quitclaim conveyance recorded in the clerk's office. Thereupon, the property may be levied upon and sold as other property of the defendant; and the proceeds shall be applied to the payment of the judgment or, if there are conflicting claims, the proceeds shall be applied as determined in proceedings had for that purpose.
(b) In all cases provided for in subsection (a) of this Code section, notice of the levy and time of sale shall be given by the levying officer to the vendor or holder of the title given to secure the debt, if known, and also to the defendant in fi. fa. and, in case of death, to their legal representatives. Depositing a properly addressed and stamped letter in the post office shall be deemed sufficient notice under this subsection.
In all cases where a deed to land has been executed to secure a debt or the performance of an obligation and the grantor therein is or becomes thereafter liable to the process of attachment, an attachment may issue against him at the instance of the payee, assignee, or holder of the debt or obligation upon his compliance with the provisions of law relating to attachments. The attachment shall be levied upon the land described in the deed, and the subsequent proceedings shall be in all respects as prescribed by law in relation to attachments. The holder of the legal title of the land described in the deed or, if dead, his executor or administrator may make and execute, without order of any court, for the purpose of levy and sale after the rendition of judgment in attachment and the issuance of execution thereon, a quitclaim deed of conveyance of the land to the grantor in the deed and may file the same for record in the office of the clerk of the superior court of the county where the land is located. When a judgment is obtained upon the attachment and the deed is so filed and recorded, the execution issued upon the judgment may be levied upon the land and the land may be sold as other property of the defendant. The proceeds arising from the sale shall be applied to the payment of the judgment or, if there are conflicting claims, the proceeds shall be applied as determined in proceedings had for that purpose; provided, however, this Code section shall not apply unless the debt or debts or liabilities so secured have become due under the terms of the contract creating the obligation or obligations.
(a) Any person holding a security interest on personal property under a transaction governed by this part or by Title 11, the “Uniform Commercial Code,” and wishing to foreclose the security interest shall be authorized to foreclose the security interest and shall be entitled to an execution directed to all and singular the sheriffs, the marshals, the constables, or their lawful deputies, of this state, which execution shall command the sale of the secured property to satisfy the amount due from the debtor, together with the costs of the proceedings to foreclose the security interest in accordance with the procedure specified in this part, together with an order directing the defendant or the party in possession to turn over to the sheriff, the marshal, the constable, or their lawful deputies the property sought to be foreclosed upon as provided for in subsection (d) of Code Section 44-14-233.
(b)(1) As used in this subsection, the term “rental transaction” means the lease or rental of goods or personal property.
(2) Any owner of personal property leased or rented in a rental transaction who wishes to regain possession of such property as authorized by the terms of the transaction may obtain a writ of possession under this subpart in the same manner as is authorized for a holder of a security interest in personal property.
(3) Solely for the purpose of applying the procedures specified by this part to rental transactions and not for any other purposes, the owner of the property shall be considered to be a secured party and the rented or leased property shall be considered to be secured property. Proceedings to regain property under a rental transaction shall be as provided in this subpart, except that after a writ of possession is granted the rented or leased property shall be delivered to the owner and shall not be levied upon.
Upon a statement of the facts under oath, any person holding a security interest on personal property and wishing to foreclose the security interest may petition, by affidavit, either in person or by his or her agent or attorney in fact or at law, for a writ of possession. Such affidavit shall be made pursuant to the requirements of Code Section 9-10-113 and forwarded with the petition to the appropriate judge, magistrate, or clerk in the county where the debtor may reside or where the secured property is located.
(a) When the petition provided for in Code Section 44-14-231 is made, the judge, the magistrate, or the clerk shall grant and issue a summons as prescribed in this Code section to the sheriff, his deputy or marshal, or any lawful constable of the county where the debtor resides or the secured property is located. Service shall be made by the officer by delivering a copy of the summons attached to a copy of the petition to the defendant personally; or, if the officer is unable to serve the defendant personally, service may be had by delivering the summons and the petition to any person sui juris residing on the premises; or, if no such person is found residing on the premises after reasonable effort, service may be had by tacking a copy of the summons and the petition on the door of the premises and, on the same day of the tacking, by enclosing, directing, stamping, and mailing by first-class mail a copy of the summons and the petition to the defendant at his last known address, if any, and making an entry of this action on the petition filed in the case.
(b) The summons served on the defendant pursuant to subsection (a) of this Code section shall command and require the defendant to answer either orally or in writing within seven days from the date of the actual service unless the seventh day is a Saturday, a Sunday, or a legal holiday, in which case the answer may be made on the next day which is not a Saturday, a Sunday, or a legal holiday.
(c) It shall be the obligation of the debtor to advise the secured creditor of any change of his address subsequent to the date of the granting of the security interest.
(d) The form of the summons shall be uniform in every county of this state and is prescribed as follows:
| “IN THE _____ COURT OF _____ COUNTY | | | --- | --- | | | | | STATE OF GEORGIA | | | (Style of case) | CIVIL ACTION | | | NO. _________________ |
SUMMONS
TO THE ABOVE-NAMED DEFENDANT:
The defendant _____ herein _____ hereby commanded and required personally or by attorney to file with the Clerk of the _____ Court of _____ County (insert location) within seven days from the date of service of the within affidavit and summons, or on the first business day thereafter if the seventh day falls on a Saturday, a Sunday, or a legal holiday, then and there to answer said affidavit in writing or orally. If the defendant fails to answer on or before the seventh day from the date of service, the defendant may reopen the default as a matter of right by making an answer within seven days after the date of the default notwithstanding the provision of Code Section 9-11-55 of the Official Code of Georgia Annotated. If the seventh day is a Saturday, a Sunday, or a legal holiday, the answer may be made on the next day which is not a Saturday, a Sunday, or a legal holiday. The last possible date on which the defendant may answer is the _____ day of _____, _____. If answer is not so made, a writ of possession shall issue against you as by law provided, pursuant to plaintiff's affidavit.
Witness the Honorable _____, Judge of said Court.
This _____ day of _____, _____.
| ____________________________ | | --- | | Clerk, | | ________ Court of ________ County | | | | Service perfected on | | defendant, this ________ | | day of ____________________________, ________. | | ____________________________ | | Sheriff, deputy, marshal | | or constable” |
(a) If the defendant fails to answer on or before the date provided in subsection (b) of Code Section 44-14-232, the defendant may reopen the default as a matter of right by making an answer within seven days after the date of the default notwithstanding the provisions of Code Section 9-11-55. If the seventh day is a Saturday, a Sunday, or a legal holiday, the answer may be made on the next day which is not a Saturday, a Sunday, or a legal holiday.
(b) If the defendant fails to answer or open the default, the court shall grant a writ of possession and, if otherwise permitted by this part, the plaintiff shall be entitled to a verdict and a judgment by default in open court or in chambers and without the intervention of a jury for all of the amount due, together with costs, as if every item and paragraph of the affidavit provided for in Code Section 44-14-231 were supported by proper evidence.
(c) The defendant may answer either in writing or orally. If the defendant answers orally, the substance thereof shall be endorsed by the court on the petition. The answer may contain any legal or equitable defense or counterclaim. If the defendant answers, a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record. Every effort shall be made by the trial court to expedite a trial of the issues and place the case on the next available calendar. However, the trial shall not be held before seven days have elapsed from the date the defendant files his answer. The defendant shall be allowed to remain in possession of the secured property pending the final outcome of the litigation, provided that the defendant complies with Code Section 44-14-234.
(d) The court shall issue an order directing the defendant or person in possession of property sought to be foreclosed to turn over said property to the sheriff, marshal, constable, or their lawful deputies whenever that court issues a writ of possession for personal property pursuant to this part.
(e) A suggested form for the order authorized under subsection (d) of this Code section is as follows:
| “IN THE _____ COURT OF _____ COUNTY | | | --- | --- | | | | | STATE OF GEORGIA | | | | | | (Style of case) | CIVIL ACTION | | | NO. _________________ |
ORDER
A writ of possession having been issued against the defendant for personal property to be foreclosed upon, it is:
ORDERED that the defendant or the party in possession of the property specified in that writ of possession be and that person is hereby directed to turn over to the sheriff, marshal, or constable of _____ County or his lawful deputies, or to any sheriff, marshal, or constable of this state or their lawful deputies, the (describe property), instanter, or advise said officer of the location of the property if same is not in defendant's possession.
SO ORDERED, this _____ day of _____, _____.
| ____________________________ | | --- | | JUDGE | | PRESENTED BY: | | ____________________ | | Attorney's name | | and address” |
In any foreclosure action, the defendant shall comply with the following provisions:
(1) Where the issue of the right of possession cannot be finally determined within two weeks from the date of service of the copy of the summons, the defendant shall be required to pay into the registry of the trial court:
(A) All past due amounts which are admitted to be due and for which there are no allegations of defenses or claims which, if proven, would offset said amounts alleged past due; and
(B) All amounts of unaccelerated payments which become due after the issuance of the summons as said amounts of payments become due;
provided, however, that, in lieu of the payments, the defendant shall be allowed to submit a receipt to the court indicating that the payments have been made to the secured creditor. In the event that the amount of the payments actually due or to become due is in controversy, the court shall determine the amount to be paid into the court in the same manner as provided in paragraph (2) of this Code section;
(2) If the plaintiff and the defendant disagree as to the amounts actually due or to become due, the court shall set a hearing date to determine the amount to be paid into the court. At the hearing, the parties may submit to the court any evidence of the amounts actually due or to become due, including any security agreement and evidence of any claims or defenses arising out of the same transaction, for the purpose of establishing the actual amount of the payments to be paid into the registry of the court;
(3) After the date of the service of the summons as provided in Code Section 44-14-232, the defendant shall not transfer, remove, or convey the secured property without posting bond as provided in Code Section 44-14-237;
(4) If the defendant fails to comply with any provision of this Code section to the detriment of the plaintiff, the court shall issue a writ of possession. The issuance of a writ of possession shall not affect the merits of the case but shall only affect the right to possession pending a final decision on the merits; and
(5) The court shall order the clerk of the court to pay to the plaintiff the amounts paid into the registry of the court as the payments are made; provided, however, that, if the defendant claims that he is entitled to all or a part of the funds and such claim is an issue of controversy in the litigation, the court shall order the clerk to pay to the plaintiff without delay only that portion of the funds to which the defendant has made no claim in the proceedings. That part of the funds which is a matter of controversy in the litigation shall remain in the registry of the court until a final determination of the issues.
Any judgment by the court shall be appealable pursuant to Chapters 2, 3, 6, and 7 of Title 5 or any other applicable law. If the judgment of the court awards possession of the secured property to the plaintiff and the defendant appeals this judgment, the defendant shall remain in possession of the secured property, provided that the defendant complies with all of the provisions of Code Section 44-14-234 until the issue has been finally determined on appeal.
Whenever a writ of possession is granted pursuant to a petition filed in accordance with Code Section 44-14-231, a levy may be made on the secured property by the sheriff, the deputy, the marshal, the constable, or a duly qualified levying officer of the court pursuant to the writ of possession. At the option of the plaintiff, the sheriff, the deputy, the marshal, the constable, or a duly qualified levying officer of the court shall either surrender the secured property to the plaintiff for retention or disposition in accordance with Article 9 of Title 11 or shall advertise and sell the same as in the case of levy and sale under execution.
In all cases where the defendant may desire to transfer, remove, or convey any of the secured property after the service of the summons and after having an opportunity to answer, the defendant shall post bond for the delivery of the property at the time and place of sale. The bond shall be with good security for a sum equal to the value of the property or the amount of the alleged remaining balance, whichever is less. The value of the property shall be estimated by the judge, the magistrate, or the clerk. Upon the approval of the bond by the judge, the magistrate, or the clerk, the defendant may transfer, remove, or convey such property as may be approved by the judge, the magistrate, or the clerk.
If a mortgage on personalty is given to secure several debts falling due at different times, the mortgagee may foreclose when the first debt becomes due; and the court will control the surplus so as to protect the lien created for the debts not due.
Whenever a process of attachment may be legally brought against any person upon any debt or demand secured by a mortgage on personal property, or whenever the purchaser of mortgaged property is seeking to remove the property outside of the county, or when the defendant is seeking to dispose fraudulently or is fraudulently disposing of the mortgaged property and a disposal of the property will lessen the security, the creditor may foreclose his mortgage in the manner prescribed by law, except that the affidavit need not state that the debt or demand is due but shall state that the debtor has placed himself in one of the positions where a process of attachment could legally issue against him, or that the defendant is disposing or seeking to dispose of the mortgaged property and that a disposal of the property will lessen the security and shall state the amount of the debt or demand claimed and when the debt will be due.
All subsequent proceedings respecting the levy and sale of the mortgaged property shall be conducted in the manner prescribed by law; and the money realized from the sale of the property shall be disbursed by the proper officer under the terms and rules prescribed by law, except that the money shall not be paid over to the plaintiff in fi. fa. until the debt secured by the mortgage becomes due.
After the levy of the execution on the mortgaged property, the defendant may file his affidavit of illegality, in which affidavit he may avail himself of any defense that he could have set up in an ordinary action upon the demand secured by the mortgage and may show that he is not justly indebted to the plaintiff in the sum claimed in the affidavit of foreclosure. The subsequent proceedings, as to the giving of bond and the trial of the issue made in the case, shall be conducted in the manner prescribed by Code Section 44-14-233.
As used in this subpart, the term:
(1) “Commercial transaction” means a transaction which gives rise to an obligation to pay for goods sold or leased, services rendered, or moneys loaned for use in the conduct of a business or profession and not for personal consumption.
(2) “Consumer transaction” means the sale, lease, or rental of goods, services, or property, real or personal, primarily for personal, family, or household purposes.
(3) “Waiver” means a written statement signed by the defendant, which statement contains language clearly and unambiguously waiving any and all rights the defendant may have to a notice prior to seizure by a creditor having an interest in personal property of the defendant. No waiver shall be effective unless the interest sought to be foreclosed upon arose out of a commercial transaction.
Any person seeking to foreclose an interest in personal property arising out of a commercial transaction under this subpart may seek an immediate writ of possession from the court before which the petition is filed if the petition contains a statement of facts, under oath, by the petitioner or his agent or attorney which sets forth the basis of the petitioner's claim and a sufficient ground for the issuance of an immediate writ of possession. No such writ shall issue on an interest arising out of a consumer transaction; provided, however, that an immediate writ of possession may issue for merchandise or services rendered on merchandise which was paid for, in whole or in part, by a bad check as the term “bad check” is defined in Code Section 44-14-516.
The petitioner seeking an immediate writ of possession shall allege under oath specific facts sufficient to show that it is within the power of the defendant to conceal, waste, encumber, convert, convey, or remove from the jurisdiction of the court the property which is the subject matter of the petition or that the petitioner's postjudgment remedy would otherwise be inadequate.
The petition for an immediate writ of possession shall be accompanied by a waiver, as defined in Code Section 44-14-260, or the petitioner shall furnish a bond in the amount of the petitioner's claim for the payment of damages which the defendant may sustain if the writ is obtained wrongfully.
The court before which the petition is pending shall issue a writ for immediate possession upon finding that the petitioner has complied with Code Sections 44-14-261 through 44-14-263. If the petitioner is found not to have made sufficient showing to obtain an immediate writ of possession, the court may nevertheless treat the petition as one being filed under Code Section 44-14-231 and may proceed accordingly.
When an immediate writ of possession has been granted, a copy of the petition, the affidavits, the waiver or bond, and the order shall be served in any manner provided in Code Section 44-14-232 as if the petition were one filed under Code Section 44-14-231.
Upon the granting of a writ of immediate possession, the action shall proceed in the manner provided under Code Section 44-14-236.
At any time prior to the sale or other final disposition of the property by the levying officer or petitioner as provided for under Code Section 44-14-236 but no later than 30 days after service as provided for under Code Section 44-14-265, the defendant may appear and file any legal or equitable defense or counterclaim to the petitioner's claim for a writ of immediate possession. After the filing of such defense or counterclaim, a trial of any issue requiring a trial shall be had in accordance with the procedure prescribed for civil actions in courts of record.
(a) At any time within which the defendant may file defenses as provided for under Code Section 44-14-267, the defendant may:
(1) Move for a dissolution of the writ, which motion shall be granted unless the petitioner proves the grounds upon which the writ was issued; or
(2) Pay to the court the full amount of the petitioner's claim, including costs, or furnish a bond with good and sufficient security for the value of the property as determined after hearing by the court before which the matter is pending or a bond for the amount of petitioner's claim, including costs, whichever is less.
(b) If the writ is dissolved under paragraph (1) or (2) of subsection (a) of this Code section, the action shall proceed on the petitioner's claim as if no writ had issued; and any issue requiring trial shall be had in accordance with the procedure prescribed for civil actions in courts of record.
Upon the failure of the defendant to appear and answer within the time provided in Code Section 44-14-267, if the service on the defendant was made in such a manner as to comply with Code Section 9-11-4, a default judgment shall be entered against the defendant for the full amount of the petitioner's claim.
The owner of any bill of sale or written contract retaining title to personal property to secure a debt may foreclose the contractor bill of sale in the same manner as mortgages on personal property are foreclosed.
In the event any bill of sale is foreclosed as provided in Code Section 44-14-280, the proceedings after foreclosure shall be the same as the proceedings to foreclose mortgages, with the same right to defend in the manner in which defenses to foreclosures of mortgages are now provided for by law.
When any judgment has been or shall be rendered in any court of this state upon any note or other evidence of debt given for the purchase money of personal property and where the title for the property has been retained in the vendor, it shall be lawful for the holder of the note or other evidence of debt in which title is retained to make, file, and have recorded in the office of the clerk of the superior court where the defendant resides a bill of sale to the defendant for the personal property or, if he is dead, to his executor or administrator or, if there is no executor or administrator, to the heirs of the deceased; and, if the holder of the note or other evidence of debt in which title is retained is dead, his executor or administrator may in like manner make and file such bill of sale without obtaining an order of the court for that purpose. Upon the filing of the bill of sale, the personal property may be levied on and sold under such judgment as in other cases; provided, however, that the judgment shall take and be a lien upon the personal property and the proceeds of the sale thereof, prior to all other judgments, claims, liens, and other encumbrances, until the judgment shall be fully paid and satisfied.
Any person having a mortgage on personal property to secure a debt not exceeding $100.00 in principal and desiring to foreclose the mortgage may, by himself, his agent, or his attorney, make an affidavit of the amount of the principal and the interest due on the mortgage, which affidavit shall be annexed to the mortgage. When the mortgage or verified copy with the affidavit annexed thereto shall be filed with any magistrate in the county where the mortgagor resides, if a resident of this state, or, if not a resident of this state, in the county where the mortgaged property is located, it shall be the duty of the magistrate to issue an execution directed to all and singular the sheriffs, the marshals, their deputies, and the constables of this state commanding the sale of the property to satisfy the principal, the interest, and the costs of the proceedings to foreclose the mortgage.
It shall be the duty of the magistrate with whom the affidavit and the mortgage are filed to give notice to the mortgagor of the proceedings at the time of issuing the execution.
When the execution provided for by Code Section 44-14-300 is delivered to a constable, he shall levy on the property wherever it may be found; and, after advertising the same for ten days preceding the sale by giving a full description of the property to be sold and the process under which he is proceeding in a written advertisement at three or more public places in the district in which the property may be found, he shall put up and expose the property for sale as provided in this Code section; provided, however, that the sale shall be had within the legal hours of sale on a regular court day and at the usual place of holding magistrate courts for the district. The constable shall put up and expose the property for sale at the time and place and in the same manner as constable's sales are required to be held.
The mortgagor may avail himself of any defense he may have to the foreclosure in the same manner and upon the same conditions as allowed by law in case of foreclosure of chattel mortgages in the superior courts. Whenever any such defense is filed by the mortgagor, the magistrate issuing the execution shall have the power and jurisdiction to hear and determine the issues made thereon as in other cases at law.
(a) The following liens are established in this state:
(1) Liens for taxes in favor of the state, the counties, and the municipal corporations;
(2) Liens in favor of creditors by judgment and decree;
(3) Liens in favor of laborers;
(4) Liens in favor of landlords;
(5) Liens in favor of mortgagees;
(6) Liens in favor of landlords furnishing supplies;
(7) Liens in favor of mechanics on real and personal property;
(8) Liens in favor of contractors, materialmen, subcontractors, materialmen furnishing material to subcontractors, and laborers furnishing labor to subcontractors, machinists, and manufacturers of machinery. As used in this paragraph, the term “subcontractor” includes, but is not limited to, subcontractors having privity of contract with the prime contractor;
(9) Liens in favor of certain creditors against steamboats and other watercraft;
(10) Liens in favor of the proprietors of sawmills and the proprietors of planing mills and other similar establishments;
(11) Liens in favor of innkeepers, boardinghouse keepers, carriers, livery stable keepers, pawnbrokers, depositories, bailees, factors, acceptors, and attorneys at law;
(12) Liens in favor of owners of stallions, jacks, bulls, and boars;
(13) Liens in favor of railroad employees, owners of stock killed, and persons furnishing supplies to railroads;
(14) Liens in favor of laundrymen;
(15) Liens in favor of jewelers;
(16) Liens in favor of the state for expenditures from the hazardous waste trust fund pursuant to subsection (e) of Code Section 12-8-96. Such liens shall be superior to all other liens except liens for taxes and other prior perfected recorded liens or claims of record; and
(17) Liens in favor of a nonprofit organization or entity that is exempt from taxation under 26 U.S.C. Section 501(c) which exercises the powers of a fire department as provided for under Chapter 3 of Title 25 that are requested by property owners and that are based upon fees and rates charged that are consistent with the Federal Emergency Management Agency of the United States Department of Homeland Security's Schedule of Equipment Rates as such existed on July 1, 2019.
(b)(1) All liens provided for in this chapter or specifically established by federal or state statute, county, municipal, or consolidated government ordinance or specifically established in a written declaration or covenant which runs with the land shall be exempt from subsection (c) of this Code section. All other liens shall be defined as nonconforming liens and shall not be eligible for filing and recording.
(2) Each nonconforming lien shall be a nullity with no force or effect whatsoever, even if said nonconforming lien is filed, recorded, and indexed in the land records of one or more counties in this state.
(c)(1) Any person, corporation, or other entity against whose property a nonconforming lien is filed or recorded may, without notice to any party, file an ex parte petition for an order to remove a nonconforming lien from the record in the superior court of the county in which said lien is filed or recorded and obtain an order from said superior court directing the clerk of the superior court to record the order and mark the recorded nonconforming lien: “CANCELED OF RECORD PURSUANT TO ORDER DATED _____, RECORDED AT DEED BOOK _____, PAGE _____. THIS _____ DAY OF _____, _____.” The petition shall set forth that:
(A) The movant is a party against whose property a nonconforming lien is filed;
(B) The lien in question is a nonconforming lien as defined under this Code section; and
(C) A certified copy of the nonconforming lien is attached as an exhibit.
The petition must be executed by the movant or movant's attorney. The order may be entered as early as the date of filing of the petition and shall set forth that, upon review of the petition and the certified copy of the recorded instrument attached thereto, it is the order of the court that said lien is a nonconforming lien under this Code section and that the clerk of the court is ordered to record the order and mark the nonconforming lien canceled of record.
(2) Any official or employee of the government of this state or any branch thereof, any political subdivision of this state, or the government of the United States or any branch thereof against whose property a nonconforming lien is filed or recorded may, without notice to any party and in lieu of the procedure provided by paragraph (1) of this subsection, file an ex parte affidavit of nonconforming lien in the superior court of the county in which said lien is filed or recorded. The affidavit shall set forth that:
(A) Such person against whose property a nonconforming lien is filed is an official or employee of the government of this state or a branch thereof, a political subdivision of this state, or the government of the United States or a branch thereof;
(B) The lien in question is a nonconforming lien as defined under this Code section and was filed against the government official or employee based upon the performance or nonperformance of his or her official duties; and
(C) A certified copy of the nonconforming lien is attached as an exhibit.
The affidavit filed for such government official or employee must be executed by the Attorney General or a deputy or assistant attorney general in the case of an official or employee of the government of this state or a branch thereof, the attorney representing a political subdivision of this state in the case of an official or employee of such political subdivision, or a United States attorney or an assistant United States attorney in the case of an official or employee of the government of the United States or a branch thereof. The lien shall be conclusively presumed to be nonconforming upon the filing of such affidavit, and the clerk of the court shall instanter mark the recorded nonconforming lien: “CANCELED OF RECORD PURSUANT TO AFFIDAVIT DATED _____, RECORDED AT DEED BOOK _____, PAGE _____. THIS _____ DAY OF _____, _____.”
The judgment upon any evidence of debt given for the purchase money of land, where titles have not been made but bond for titles has been given, shall be a lien upon the land and the proceeds of the sale thereof and shall be prior to all other judgments, claims, liens, and encumbrances until the judgment shall be fully paid and satisfied.
The vendor's equitable lien for the purchase money of lands is abolished.
All liens which are not regulated and fixed as to rank by this title shall rank according to date, the oldest having priority.
Except as otherwise provided by law, assignments of all liens shall be in writing. Under an assignment, the assignee shall have all the rights of the assignor as provided by law.
All transfers and assignments of rent notes, mortgage notes, and other such evidences of indebtedness which are secured either by contract lien or out of which a lien springs by operation of law shall be sufficiently technical and valid where the transfer or assignment plainly seeks to pass the title to any of the papers in writing from one person to another.
Upon all such transfers or assignments of any rent note, mortgage note, or other evidence of indebtedness mentioned in Code Section 44-14-325, the transfer or assignment shall carry, together with the title thereof, the lien connected with the same without naming or specifically transferring the lien so that the effect of the transfer or assignment will be to carry the lien completely and fully as a necessary incident of the transfer.
Landlords furnishing supplies, money, horses, mules, asses, oxen, farming utensils, and equipment necessary to make crops shall have the right to secure themselves from the crops raised during the year in which such things are furnished upon such terms as may be agreed upon by the parties but with the following conditions:
(1) The liens provided for in this Code section shall arise by operation of law from the relationship of landlord and tenant as well as by a special contract in writing whenever the landlord shall furnish the articles enumerated in this Code section or any of them to the tenant for the purposes named. The liens may be enforced in the manner provided in Code Section 44-14-550;
(2) Whenever the liens are created by a special contract in writing, they shall be assignable by the landlord and may be enforced by the assignees in the manner provided for the enforcement of such liens by landlords;
(3) The liens shall only exist as liens on the crops raised during the year in which they are made and may be foreclosed before the debt is due if the tenant is removing or seeking to remove his crops from the premises or when other legal process, not in favor of the landlord nor controlled by him nor levied at his instance or procurement, is being enforced against the crops;
(4) Every person giving a lien under this Code section who has previously given a lien or liens under it or any other lien shall, when giving a new lien under this Code section on the same property to another person, inform such person, if asked, as to the facts of the amount of such lien or liens and to whom given; and
(5) The liens created under this Code section are declared to be superior in rank to other liens and shall, as between themselves and other liens not excepted by this paragraph, rank according to date; but they shall be inferior to liens for taxes, the general and special liens of laborers, and the special liens of landlords for rent.
Landlords shall have a special lien for rent on crops grown on land rented from them, which lien shall be superior to all other liens except liens for taxes, and shall also have a general lien on the property of the debtor which is subject to levy and sale, which general lien shall date from the time of the levy of a distress warrant to enforce the general lien.
The general liens of landlords shall be inferior to liens for taxes and to the general and special liens of laborers but shall rank with other liens and with each other according to date, the date being from the time of levying a distress warrant. The special liens of landlords for rent shall date from the maturity of the crops on the lands rented unless otherwise agreed on but shall not be enforced by distress warrant until the rent is due, unless the tenant is removing his property, or when other legal process is being enforced against the crops, in which case the landlord may enforce the general and special liens.
A landlord's special lien for rent shall be enforced by a distress warrant in the same manner as general liens for rent are enforced; and no further allegations in the affidavit to procure a distress warrant to enforce a special lien for rent shall be necessary than are necessary to enforce the landlord's general lien for rent.
Whenever any written contract for rent is transferred by the landlord by written assignment before the maturity of the crops on the lands rented, the special lien in favor of the landlord shall, on the maturity of the crops, arise in favor of the transferee of such rent contract in the same manner as it would have done in favor of the landlord had no transfer been made.
The special lien provided for in Code Section 44-14-344 may be foreclosed by the transferee in his own name. The affidavit of foreclosure shall contain a recital of the fact of transfer and such other allegations as are necessary in the foreclosure of special liens by landlords.
A person who has given a lien under Code Section 44-14-340 or any other lien shall, when giving a new lien under the Code section on the same property to another person, inform such person, if questioned as to the facts, of the amount of such prior lien and to whom it was given. Any person who gives false information as to such facts shall be guilty of a misdemeanor.
Any person who buys any corn or any cotton in the seed from tenants or laborers residing on the land of another as such or from the agent of such tenant or laborer when such tenant or laborer had no right to sell such corn or cotton and after notice of such disability to sell has been given in writing by the landlord or employer to such buyer shall be guilty of a misdemeanor.
Any person who sells or otherwise disposes of crops upon which there is a lien for rent and advances, before the payment of the rent and advances, without the consent of and with intent to defraud the lienor or assignee of the lien, where loss is thereby sustained by the lienor or assignee of the lien, shall be guilty of a misdemeanor.
(a) As used in this Code section, the term:
(1) “Lienholder” shall mean the holder of a perfected security interest and its assignees or servicers of the underlying debt obligation. The term shall apply only to the lienholder or an assignee or servicer of the lienholder for unpaid purchase price or first lien who has recorded such lien on the title of the manufactured home or mobile home.
(2) “Manufactured home” has the same meaning as provided in paragraph (4) of Code Section 8-2-131.
(3) “Manufactured home community” means a parcel or tract of land on which three or more manufactured homes or mobile homes are located on a continual, nonrecreational basis and offered to the public.
(4) “Mobile home” has the same meaning as provided in paragraph (6) of Code Section 8-2-131.
(b) As provided by this Code section, any lien or charge against a manufactured home or mobile home for rent upon the real property on which the manufactured home or mobile home is or has been located is subordinate to the rights of the lienholder for unpaid purchase price or first lien, which is recorded on the title of the manufactured home or mobile home, and the assignee of such lienholder if not recorded on the title.
(c) In the event a manufactured home or mobile home has been vacant for more than 30 days and after notice to the lienholder as provided in this Code section, rent charges, as provided in this Code section, may be collected by the owner of the manufactured home community from the lienholder and the assignee of any such lienholder by an action at law as authorized by this Code section.
(d) The owner of the manufactured home community shall be entitled to collect rent charges accruing from 30 days after the lienholder receives written notice of a completed eviction of the owner or occupant of a manufactured home or mobile home by the owner of the manufactured home community or notice that a manufactured home or mobile home has been abandoned or voluntarily surrendered by the homeowner or occupant and that the manufactured home or mobile home is presently vacant and unoccupied.
(e) The notice shall state that an action for eviction has been completed against the homeowner or occupant, that the home is presently vacant and unoccupied, the amount of the daily rent charges calculated pursuant to subsection (i) of this Code section, and the date upon which the homeowner or occupant was required to make regular payments to the owner of the manufactured home community.
(f) The lienholder shall notify the owner of the manufactured home community within 30 days of receipt of the notice pursuant to subsections (d) and (e) of this Code section whether it intends to make payment of the rent charges and, if the lienholder agrees to make payment, to pay the rent charges that are due pursuant to this Code section. Thereafter, the lienholder shall pay rent charges according to the schedule of payments that the homeowner or occupant was responsible for paying through the date that the manufactured home or mobile home is removed from the owner of the manufactured home community's property. If the lienholder fails to notify the owner of the manufactured home community that it does not intend to pay the rent charges, the rent charges shall accrue and be due and owing to the property owner.
(g) In the event that the lienholder files either an action for replevin of the home or forecloses on the lien for unpaid purchase price or first lien, the lienholder shall be responsible for unpaid rent and rent charges that have accrued beginning 30 days after the eviction of the owner or occupant of the manufactured home or mobile home.
(h) In the event that the homeowner or occupant declares bankruptcy, the accruing of any rent or rent charge due by the lienholder to the owner of the manufactured home community shall be stayed by the bankruptcy until 30 days after the final court action discharging the bankruptcy or releasing the collateral, whichever occurs first.
(i) The maximum rent charge available to the owner of a manufactured home community shall be a daily rate equal to one-thirtieth of the then current lot rental amount paid by the homeowner or occupant as defined in the current or most recent lease agreement between the homeowner or occupant and the owner of the manufactured home community. In the event that no written lease agreement is in effect between the owner of the manufactured home community and the owner or occupant of a manufactured home or mobile home, the maximum rent charge available to the owner of the manufactured home community shall be $3.00 per day.
(j) Notice required as set forth in subsections (d) and (e) of this Code section shall be mailed by certified mail, return receipt requested, or statutory overnight delivery to the registered agent of the lienholder or, if the lienholder is not a corporation, to the lienholder's last known address. Notice by certified mail shall be effective on the date of receipt or, if refused, on the date of refusal.
(k) It shall be unlawful for the owner of the manufactured home community to refuse to allow the lienholder to repossess and move the manufactured home or mobile home for failure to pay any charges for which notice was not provided in accordance with the requirements of this Code section. In the event the owner of the manufactured home community refuses to allow the lienholder to repossess and move the manufactured home or mobile home, the owner of the manufactured home community shall be liable to the lienholder for each day that the owner of the manufactured home community unlawfully maintains possession of the home, at a daily rate equal to one-thirtieth of the monthly payment due according to the contract and security agreement entered into between the homeowner or occupant and the lienholder.
(l) If either a lienholder or an owner of a manufactured home community brings an action at law against the other in a court of competent jurisdiction, the prevailing party, as determined by the court, in addition to other relief granted by the court, may be awarded costs of litigation including reasonable attorney's fees.
(m) If, after receipt of a notice pursuant to subsections (d) and (e) of this Code section, a lienholder sells or assigns a manufactured home or mobile home, the lender shall provide the purchaser of such home with a copy of the notice received from the owner of the manufactured home community and the purchaser shall take the home subject to the rights of the owner of the manufactured home community pursuant to this Code section. The owner of the manufactured home community may enforce his or her rights for rent charges against the purchaser without issuing additional notices.
As used in this part, the term:
(.1) “Business day” means any day that is not a Saturday, Sunday, or legal holiday.
(1) “Contractor” means a contractor having privity of contract with the owner of the real estate.
(2) “Land surveyor” shall have the same meaning as provided in Code Section 43-15-2.
(2.1) “Lien action” means a lawsuit, proof of claim in a bankruptcy case, or a binding arbitration.
(3) “Materials,” in addition to including those items for which liens are already permitted under this part, means tools, appliances, machinery, or equipment used in making improvements to the real estate, to the extent of the reasonable value or the contracted rental price, whichever is greater, of such tools, appliances, machinery, or equipment.
(4) “Materialmen” means all persons furnishing the materials, tools, appliances, machinery, or equipment included in the definition of materials in paragraph (3) of this Code section.
(5) “Professional engineer” shall have the same meaning as provided in Code Section 43-15-2.
(6) “Registered forester” shall have the same meaning as provided in Code Section 12-6-41.
(7) “Registered interior designer” shall have the same meaning as provided in Code Section 43-4-1.
(8) “Registered land surveyors” and “registered professional engineers” means land surveyors or professional engineers who are registered as land surveyors or professional engineers under Chapter 15 of Title 43 at the time of performing, rendering, or furnishing services protected under this part.
(9) “Residential property” means single-family and two-family, three-family, and four-family residential real estate.
(10) “Subcontractor” means, but is not limited to, subcontractors having privity of contract with the contractor.
(a) The following persons shall each have a special lien on the real estate, factories, railroads, or other property for which they furnish labor, services, or materials:
(1) All mechanics of every sort who have taken no personal security for work done and material furnished in building, repairing, or improving any real estate of their employers;
(2) All contractors, all subcontractors and all materialmen furnishing material to subcontractors, and all laborers furnishing labor to subcontractors, materialmen, and persons furnishing material for the improvement of real estate;
(3) All registered architects furnishing plans, drawings, designs, or other architectural services on or with respect to any real estate;
(4) All registered foresters performing or furnishing services on or with respect to any real estate;
(5) All registered land surveyors and registered professional engineers performing or furnishing services on or with respect to any real estate;
(6) All contractors, all subcontractors and materialmen furnishing material to subcontractors, and all laborers furnishing labor for subcontractors for building factories, furnishing material for factories, or furnishing machinery for factories;
(7) All machinists and manufacturers of machinery, including corporations engaged in such business, who may furnish or put up any mill or other machinery in any county or who may repair the same;
(8) All contractors to build railroads;
(9) All suppliers furnishing rental tools, appliances, machinery, or equipment for the improvement of real estate; and
(10) All registered interior designers furnishing plans, drawings, designs, or other interior design services on or with respect to any real estate.
(b) Each special lien specified in subsection (a) of this Code section may attach to the real estate of the owner for which the labor, services, or materials are furnished if they are furnished at the instance of the owner, contractor, or some other person acting for the owner or contractor and shall include the value of work done and materials furnished in any easement or public right of way adjoining said real estate if the work done or materials furnished in the easement or public right of way is for the benefit of said real estate and is within the scope of the owner's contract for improvements to said real estate.
(c) Each special lien specified in subsection (a) of this Code section shall include the amount due and owing the lien claimant under the terms of its express or implied contract, subcontract, or purchase order subject to subsection (e) of Code Section 44-14-361.1.
(d) Each special lien specified in subsection (a) of this Code section shall include interest on the principal amount due in accordance with Code Section 7-4-2 or 7-4-16.
(a) To make good the liens specified in paragraphs (1) through (8) and (10) of subsection (a) of Code Section 44-14-361, they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable:
(1) A substantial compliance by the party claiming the lien with his or her contract for building, repairing, or improving; for architectural services furnished; for registered forester services furnished or performed; for registered land surveying or registered professional engineering services furnished or performed; for materials or machinery furnished or set up; or for registered interior design services furnished or performed;
(2) The filing for record of his or her claim of lien within 90 days after the completion of the work, the furnishing of the architectural services, or the furnishing or performing of such surveying, engineering services, or interior design services or within 90 days after the material or machinery is furnished in the office of the clerk of the superior court of the county where the property is located. The lien shall include a statement regarding its expiration pursuant to Code Section 44-14-367 and a notice to the owner of the property on which a claim of lien is filed that such owner has the right to contest the lien; the absence of such statement or notice shall invalidate the lien. The claim shall be in substance as follows:
“A.B., a mechanic, contractor, subcontractor, materialman, machinist, manufacturer, registered architect, registered forester, registered land surveyor, registered professional engineer, registered interior designer, or other person (as the case may be) claims a lien in the amount of (specify the amount claimed) on the house, factory, mill, machinery, or railroad (as the case may be) and the premises or real estate on which it is erected or built, of C.D. (describing the houses, premises, real estate, or railroad), for satisfaction of a claim which became due on (specify the date the claim was due, which is the same as the last date the labor, services, or materials were supplied to the premises) for building, repairing, improving, or furnishing material (or whatever the claim may be).”
No later than two business days after the date the claim of lien is filed of record, the lien claimant shall send a true and accurate copy of the claim of lien by registered or certified mail or statutory overnight delivery to the owner of the property or, if the owner's address cannot be found, the contractor, as the agent of the owner; provided, however, that if the property owner is an entity on file with the Secretary of State's Corporations Division, sending a copy of the claim of lien to the entity's address or the registered agent's address shall satisfy this requirement. In all cases in which a notice of commencement is filed with the clerk of the superior court pursuant to subsection (b) of Code Section 44-14-361.5, a lien claimant shall also send a copy of the claim of lien by registered or certified mail or statutory overnight delivery to the contractor at the address shown on the notice of commencement;
(3) The commencement of a lien action for the recovery of the amount of the party's claim within 365 days from the date of filing for record of his or her claim of lien. In addition, within 30 days after commencing such lien action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed. The notice shall contain a caption referring to the then owner of the property against which the lien was filed and referring to a deed or other recorded instrument in the chain of title of the affected property. The notice shall be executed, under oath, by the party claiming the lien or by such party's attorney of record, but failure to execute the notice under oath shall be an amendable defect which may be cured by the party claiming the lien or by such party's attorney without leave of court at any time before entry of the pretrial order and thereafter by leave of court. An amendment of notice pursuant to this Code section shall relate back to the date of filing of the notice. The notice shall identify the court or arbitration venue wherein the lien action is brought; the style and number, if any, of the lien action, including the names of all parties thereto; the date of the filing of the lien action; and the book and page number of the records of the county wherein the subject lien is recorded in the same manner in which liens specified in Code Section 44-14-361 are filed. The clerk of the superior court shall enter on the subject lien so referred to the book and page on which the notice is recorded and shall index such notice in the name of the then purported owner as shown by the caption contained in such notice. A separate lis pendens notice need not be filed with the commencement of this action; and
(4) In the event any contractor or subcontractor procuring material, architect's services, registered forester's services, registered land surveyor's services, registered interior designer's services, or registered professional engineer's services, labor, or supplies for the building, repairing, or improving of any real estate, building, or other structure shall abscond or die or leave the state during the required time period for filing a lien action, so that personal jurisdiction cannot be obtained on the contractor or subcontractor in a lien action for the services, material, labor, or supplies, or if the contractor or subcontractor shall be adjudicated a bankrupt, or if, after the filing of a lien action, no final judgment can be obtained against him or her for the value of such material, services, labor, or supplies because of his or her death, adjudication in bankruptcy, or the contract between the party claiming the lien and the contractor or subcontractor includes a provision preventing payment to the claimant until after the contractor or the subcontractor has received payment, then and in any of these events, the person or persons furnishing material, services, labor, and supplies shall be relieved of the necessity of filing a lien action or obtaining judgment against the contractor or subcontractor as a prerequisite to enforcing a lien against the property improved by the contractor or subcontractor. Subject to Code Section 44-14-361, the person or persons furnishing material, services, labor, and supplies may enforce the lien directly against the property so improved in a lien action against the owner thereof, if filed within the required time period for filing a lien action, with the judgment rendered in any such proceeding to be limited to a judgment in rem against the property improved and to impose no personal liability upon the owner of the property; provided, however, that in such lien action for recovery, the owner of the real estate improved, who has paid the agreed price or any part of same, may set up the payment in any lien action brought and prove by competent and relevant evidence that the payments were applied as provided by law, and no judgment shall be rendered against the property improved. Within 30 days after filing such lien action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed. The notice shall contain a caption referring to the then owner of the property against which the lien was filed and referring to a deed or other recorded instrument in the chain of title of the affected property. The notice shall be executed, under oath, by the party claiming the lien or by his or her attorney of record. The notice shall identify the court or arbitration venue wherein the lien action is brought; the style and number of the lien action, if any, including the names of all parties thereto; the date of the filing of the lien action; and the book and page number of the records of the county wherein the subject lien is recorded in the same manner in which liens specified in Code Section 44-14-361 are filed. The clerk of the superior court shall enter on the subject lien so referred to the book and page on which the notice is recorded and shall index such notice in the name of the then purported owner as shown by the caption contained in such notice. A separate lis pendens notice need not be filed with the commencement of this action.
(a.1) A claim of lien may be amended at any time to reduce the amount claimed, and such amended claim of lien shall relate back to the date of filing for record of the original claim of lien. An amended claim of lien filed for record pursuant to this subsection shall be in substance as follows:
“That certain claim of lien filed by A.B. against property of C.D. on (date) and recorded at book (book#), page (page#) in the lien index of (name of county) County is hereby amended by reducing the amount of such claim of lien to (specify reduced amount claimed). The remaining terms of such original claim of lien are hereby incorporated by reference into this amended claim of lien. This amended claim of lien relates back to the date that such original claim of lien was filed for record.”
and shall be sent to the owner of the property in the same manner as required for a claim of lien in paragraph (2) of subsection (a) of this Code section.
(b) As between themselves, the liens provided for in Code Section 44-14-361 shall rank according to the date filed; but all of the liens mentioned in this Code section for repairs, building, or furnishing materials or services, upon the same property, shall, as to each other, be of the same date when declared and filed for record within 90 days after the work is done or before that time.
(c) The liens specified in Code Section 44-14-361 shall be inferior to liens for taxes, to the general and special liens of laborers, to the general lien of landlords of rent when a distress warrant is issued out and levied, to claims for purchase money due persons who have only given bonds for titles, and to other general liens when actual notice of the general lien of landlords and others has been communicated before the work was done or materials or services furnished; but the liens provided for in Code Section 44-14-361 shall be superior to all other liens not excepted by this subsection.
(d) In any proceeding brought by any materialman, by any mechanic, by any laborer, by any subcontractor, or by any mechanic of any sort employed by any subcontractor or by any materialmen furnishing material to any subcontractor, or by any laborer furnishing labor to any subcontractor, to enforce such a lien, the contractor having a direct contractual relationship with the subcontractor shall not be a necessary party; but he or she may be made a party. In any proceedings brought by any mechanic employed by any subcontractor, by any materialmen furnishing material to any subcontractor, or by any laborer furnishing labor to any subcontractor, the subcontractor shall not be a necessary party; but he or she may be made a party. The contractor or subcontractor or both may intervene in the proceedings at any time before judgment for the purpose of resisting the establishment of the lien or of asserting against the lienor any claim of the contractor or subcontractor growing out of or related to the transaction upon which the asserted lien is based.
(e) In no event shall the aggregate amount of liens set up by Code Section 44-14-361 exceed the contract price of the improvements made or services performed.
(f) The filing fees for a claim of materialman's or mechanic's lien and any related document created pursuant to this Code section, including but not limited to a notice of commencement of action, shall be the amount set by Code Section 15-6-77 for liens on real estate and personal property.
(a) The special lien specified in subsection (a) of Code Section 44-14-361 shall be dissolved if the owner, purchaser from owner, or lender providing construction or purchase money or any other loan secured by real estate shows that:
(1) The lien has been waived in writing by lien claimant; or
(2)(A) They or any of them have obtained the sworn written statement of the contractor or person other than the owner at whose instance the labor, services, or materials were furnished, or the owner when conveying title in a bona fide sale or loan transaction, that the agreed price or reasonable value of the labor, services, or materials has been paid or waived in writing by the lien claimant; and
(B) When the sworn written statement was obtained or given as a part of a transaction:
(i) Involving a conveyance of title in a bona fide sale;
(ii) Involving a loan in which the real estate is to secure repayment of the loan; or
(iii) Where final disbursement of the contract price is made by the owner to the contractor
there was not of record, at the time of the settlement of the transaction a valid preliminary notice or claim of lien which had not been previously canceled, dissolved, or expired.
(b) As used in paragraph (2) of subsection (a) of this Code section, the term:
(1) “Person other than the owner” shall not include a subcontractor.
(2) “Final disbursement” of the contract price means payment of the agreed price between the owner and contractor for the improvements made upon the real estate or the reasonable value of the labor, services, and materials incorporated in the improvements upon the real estate and shall include payment of the balance of the contract price to an escrow agent.
(a) Prior to filing a claim of lien, a person having a lien under paragraphs (1) through (8) and (10) of subsection (a) of Code Section 44-14-361 may at such person's option file a preliminary notice of lien rights. The preliminary notice of lien rights in order to be effective shall:
(1) Be filed with the clerk of superior court of the county in which the real estate is located within 30 days after the date a party delivered any materials or provided any labor or services for which a lien may be claimed;
(2) State the name, address, and telephone number of the potential lien claimant;
(3) State the name and address of the contractor or other person at whose instance the labor, services, or materials were furnished;
(4) State the name of the owner of the real estate and include a description sufficient to identify the real estate against which the lien is or may be claimed; and
(5) Include a general description of the labor, services, or materials furnished or to be furnished.
(b) A party filing a preliminary notice of lien rights except a contractor shall, within seven days of filing the notice, send by registered or certified mail or statutory overnight delivery a copy of the notice to the contractor on the property named in the notice or to the owner of the property. The lien claimant may rely on the building permit issued on the property for the name of the contractor.
(c) The clerk of each superior court shall maintain within the records of that office a record separate from all other real estate records in which preliminary notices specified in subsection (a) of this Code section and affidavits specified in subsection (c) of Code Section 44-14-361.4 shall be filed. Each such notice and affidavit shall be indexed under the name of the owner as contained in the preliminary notice. The clerk shall collect a filing fee of $5.00 for the filing of each preliminary notice.
(d) A person having a lien under paragraphs (1) through (8) and (10) of subsection (a) of Code Section 44-14-361 may enforce the lien without filing a preliminary notice of lien.
(a) A preliminary notice of lien rights filed pursuant to Code Section 44-14-361.3 shall be dissolved if it is canceled and a preliminary notice also expires and is dissolved under any of the following conditions:
(1) The lien has been waived in writing by the lien claimant;
(2) The time has expired for filing the claim of lien as required in Code Section 44-14-361.1;
(3) On residential property, a demand for filing of a claim of lien has been sent by registered or certified mail or statutory overnight delivery to the potential lien claimant at the address specified in the preliminary notice of lien rights and at least ten days have elapsed since the date of such mailing without the filing of a claim of lien; or
(4) On all property except residential property, a demand for filing of a claim of lien has been sent by registered or certified mail or statutory overnight delivery to the potential lien claimant at the address specified in the preliminary notice of lien rights and at least ten days have elapsed since the date of such mailing without the filing of a claim of lien; provided, however, the demand for filing of a claim of lien shall not be sent until the contractor's contract is substantially complete or until the potential lien claimant's contract has been terminated or the potential lien claimant has abandoned the contract.
(b) A demand for filing of claim of lien shall contain the same information required to be contained in the preliminary notice of lien rights and shall contain the following statement addressed to the potential lien claimant:
“This demand was mailed to you on _____ pursuant to Code Section 44-14-361.4. You are notified that unless you file a claim of lien with respect to this claim on or before the tenth day after said date of mailing your right to claim a lien will be dissolved.”
(c) If a demand for filing of a claim of lien is mailed as provided in this Code section and no claim of lien is filed within ten days after said date of mailing, the preliminary notice of lien rights may be canceled as provided in this subsection. In order to obtain cancellation, the person who mailed the demand or his attorney shall file with the clerk of superior court a copy of the demand and his or her affidavit that the demand was mailed as provided in paragraph (3) or (4) of subsection (a) of this Code section and that ten days have elapsed since said date of mailing without the filing of a claim of lien by the potential lien claimant. Upon such filing, the clerk of superior court shall cancel of record the preliminary notice of lien rights.
(a) To make good the liens specified in paragraphs (1), (2), and (6) through (9) of subsection (a) of Code Section 44-14-361, any person having a right to a lien who does not have privity of contract with the contractor and is providing labor, services, or materials for the improvement of property shall, within 30 days from the filing of the notice of commencement or 30 days following the first delivery of labor, services, or materials to the property, whichever is later, give a written notice to contractor as set out in subsection (c) of this Code section to the owner or the agent of the owner and to the contractor for a project on which there has been filed with the clerk of the superior court a notice of commencement setting forth therein the information required in subsection (b) of this Code section.
(b) Not later than 15 days after the contractor physically commences work on the property, a notice of commencement shall be filed by the owner, the agent of the owner, or by the contractor with the clerk of the superior court in the county in which the project is located. A copy of the notice of commencement shall be posted on the project site. The notice of commencement shall include:
(1) The name, address, and telephone number of the contractor;
(2) The name and location of the project being constructed and the legal description of the property upon which the improvements are being made;
(3) The name and address of the true owner of the property;
(4) The name and address of the person other than the owner at whose instance the improvements are being made, if not the true owner of the property;
(5) The name and the address of the surety for the performance and payment bonds, if any; and
(6) The name and address of the construction lender, if any.
The contractor shall be required to give a copy of the notice of commencement to any subcontractor, materialman, or person who makes a written request of the contractor. Failure to give a copy of the notice of commencement within ten calendar days of receipt of the written request from the subcontractor, materialman, or person shall render the provision of this Code section inapplicable to the subcontractor, materialman, or person making the request.
(c) A notice to contractor shall be sent by registered or certified mail or statutory overnight delivery to the owner or the agent of the owner and to the contractor at the addresses set forth in the notice of commencement setting forth:
(1) The name, address, and telephone number of the person providing labor, services, or materials;
(2) The name and address of each person at whose instance the labor, services, or materials are being furnished;
(3) The name of the project and location of the project set forth in the notice of commencement; and
(4) A description of the labor, services, or materials being provided and, if known, the contract price or anticipated value of the labor, services, or materials to be provided or the amount claimed to be due, if any.
(d) The failure to file a notice of commencement shall render the provisions of this Code section inapplicable. The filing of a notice of commencement shall not constitute a cloud, lien, or encumbrance upon or defect to the title of the real property described in the notice of commencement, nor shall it alter the aggregate amounts of liens allowable, nor shall it affect the priority of any loan in which the property is to secure payment of the loan filed before or after the notice of commencement, nor shall it affect the future advances under any such loan. Nothing contained in this Code section shall affect the provisions of Code Section 44-14-361.2.
(e) The clerk of each superior court shall file the notice of commencement within the records of that office and maintain an index separate from other real estate records or an index with the preliminary notices specified in subsection (a) of Code Section 44-14-361.3. Each such notice of commencement shall be indexed under the name of the true owner and the contractor as contained in the notice of commencement.
(a) Upon final payment after all labor, services, or materials have been furnished, a person who has filed a preliminary notice of lien rights shall either deliver a cancellation of the preliminary notice of lien rights at the time of final payment or cause the notice to be canceled of record within ten days after final payment. Any person who fails to so cancel a preliminary notice shall be liable to the owner for all actual damages, costs, and reasonable attorney's fees incurred by the owner in having the preliminary notice canceled.
(b) The cancellation required under this Code section shall be in the following form:
| “Clerk, Superior Court | | --- | | | | of _____ County |
You are authorized and directed to cancel of record the preliminary notice of lien rights which we filed on the property owned by (state name of owner) on (give date) and recorded by you in Book _____, Page _____, of preliminary notices kept by you.
This _____ day of _____, _____.
| _________________________ | | --- | | Lien claimant | | or attorney” |
(a) All mechanics of every sort shall have a special lien on personal property for work done and material furnished in manufacturing or repairing the personal property and for storage of the personal property after its manufacture or repair, which storage begins accruing after 30 days' written notice to the owner of the fact that storage is accruing and of the daily dollar amount thereof; and said notice shall be mailed to the owner by certified mail or statutory overnight delivery addressed to the owner at his last known address. Such special liens may be asserted by the retention of the personal property or the mechanic may surrender the personal property and give credit when the lien is enforced in accordance with Code Section 44-14-550; and if such special liens are asserted by retention of the personal property, the mechanic shall not be required to surrender the property to the holder of a subordinate security interest or lien. Such liens shall be superior to all liens except liens for taxes and, except as provided in subsection (2) of Code Section 11-9-310, such other liens as the mechanic may have had actual notice of before the work was done or material furnished.
(b) The maximum amount of storage that may be charged shall be $1.00 per day. Nothing contained in this Code section shall allow a fee for storage to be charged on any item with a fair market value in excess of $200.00. Storage charges pursuant to this Code section shall not apply to motor vehicles now or hereafter covered by Chapter 3 of Title 40 nor shall the storage fee be charged if there is a bona fide dispute between the customer and the mechanic as to the manner of repair or the charges for repair.
(c)(1) When possession of the property is surrendered to the debtor, the mechanic shall record his or her claim of lien within 90 days after the work is done and the material is furnished or, in the case of repairs made on or to farm machinery, within 180 days after the work is done and the material is furnished. The claim of lien shall be recorded in the office of the clerk of the superior court of the county where the owner of the property resides. The claim shall be in substance as follows:
“A.B., mechanic, claims a lien on __________ (here describe the property) of C.B., for work done, material furnished, and storage accruing (as the case may be) in manufacturing, repairing, and storing (as the case may be) the same.”
(2) If possession of the personal property subject to a special lien as provided in this Code section is surrendered to the debtor and if such special lien is not preserved by recording the claim of lien as provided in paragraph (1) of this subsection, the mechanic acquires a special lien on other personal property belonging to the debtor which comes into the possession of the mechanic, except that this sentence shall not apply to consumer goods which are being used by a consumer for personal, family, or household purposes or which have been bought by a consumer for use for personal, family, or household purposes. The special lien created by this paragraph shall be subject to the provisions of this Code section as to foreclosure and recording.
(a) When any person entitled under this part to claim a lien against any real estate located in this state files his or her lien in the office of the clerk of the superior court of the county in which the real estate is located, the owner of the real estate or the contractor employed to improve the property may, before or after foreclosure proceedings are instituted, discharge the lien upon the approval of a bond by the clerk of superior court. The bond shall be conditioned to pay to the holder of the lien the sum that may be found to be due the holder upon the trial of any lien action that may be filed by the lienholder to recover the amount of his or her claim within 365 days from the time the claim of lien is filed. The bond shall be in double the amount claimed under that lien and shall be either a bond with good security approved by the clerk of superior court or a cash bond, except in cases involving a lien against the owner's domicile, in which event the bond shall be in the amount claimed under the lien. An owner or contractor may be required to provide supporting data to the clerk to prove the value of domiciled property when such property serves as a bond to discharge a lien provided for in this Code section. Upon the approval by the clerk of the bond provided for in this Code section, the real estate shall be discharged from the lien. For purposes of this subsection, the term “domicile” means the established, fixed, permanent, or ordinary dwelling place of the owner.
(b) Within seven days of filing the bond required by subsection (a) of this Code section and any attachments, the party filing such bond shall send a notice of filing such bond and a copy of the bond by registered or certified mail or statutory overnight delivery to the lien claimant at the address stated on the lien or, if no such address is shown for the lien claimant, to the person shown as having filed such lien on behalf of the claimant at the indicated address of such person or, if the bond is filed by a contractor, to the owner of the property, provided that whenever the lien claimant or the owner is an entity on file with the Secretary of State's Corporations Division, sending the notice of filing such bond and a copy of the bond to the company's address or the registered agent's address on file with the Secretary of State shall be deemed sufficient; provided, however, that the failure to send the notice of filing the bond and copy of the bond shall not invalidate the bond for purposes of discharge of a claim of lien under this Code section. With respect to property bonds, the clerk shall not accept any real property bond unless the real property is scheduled in an affidavit attached thereto setting forth a description of the property and indicating the record owner thereof, including any liens and encumbrances and amounts thereof, the market value, and the value of the sureties' interest therein, which affidavit shall be executed by the owner or owners of the interest; the bond and affidavit shall be recorded in the same manner and at the same cost as other deeds of real property. So long as the bond exists, it shall constitute a lien against the property described in the attached affidavit.
(c) The clerk of the superior court shall have the right to rely upon the amount specified in the claim of lien in determining the sufficiency of any bond to discharge under this Code section. The failure to specify both the amount claimed due under the lien and the date said claim was due shall result in such lien not constituting notice for any purposes.
(d) The clerk of the superior court shall be held harmless for good faith regarding any discretionary act in connection with approval of any bond provided for in this Code section.
If services are performed or furnished with respect to any real estate by any registered architect, registered forester, registered land surveyor, registered professional engineer, or registered interior designer who is a member of a partnership or who is an agent or employee of a corporation or an association and the contract for the services is made for or on behalf of the owner with the partnership or corporation or association, the partnership, corporation, or association shall be entitled to all the privileges and benefits of Code Sections 44-14-361 and 44-14-362, just as if the partnership, corporation, or association was a registered architect, a registered forester, a registered land surveyor, a registered professional engineer, or a registered interior designer.
(a) Waivers and releases provided for under this Code section shall be limited to waivers and releases of lien and labor or material bond rights and shall not be deemed to affect any other rights or remedies of the claimant.
(b) A right to claim a lien or to claim upon a bond may not be waived in advance of furnishing of labor, services, or materials. Any purported waiver or release of lien or bond claim or of this Code section executed or made in advance of furnishing of labor, services, or materials is null, void, and unenforceable.
(c) No oral or written statement by the claimant purporting to waive, release, impair, or otherwise adversely affect a lien or bond claim is enforceable or creates an estoppel or impairment of claim of lien or claim upon a bond unless:
(1) It is pursuant to a waiver and release form duly executed by the claimant prescribed below; and
(2) The claimant has received payment for the claim as set forth in subsection (g) of this Code section.
(d) When a claimant is requested to execute a waiver and release in exchange for or in order to induce payment other than final payment, the waiver and release shall substantially follow the language of the following form, be in at least 12 point font, and need not be in boldface capital letters, and the priority of such claimant's lien rights, except as to retention, shall upon such payment thereafter run from the day after the date specified in such Waiver and Release of Lien and Payment Bond Rights Upon Interim Payment form:
“WAIVER AND RELEASE OF LIEN AND PAYMENT BOND RIGHTS UPON INTERIM PAYMENT
STATE OF GEORGIA
COUNTY OF
THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY (NAME OF CONTRACTOR) TO FURNISH (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF , COUNTY OF , AND IS OWNED BY (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)
UPON THE RECEIPT OF THE SUM OF $ , THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND THROUGH THE DATE OF (DATE) AND EXCEPTING THOSE RIGHTS AND LIENS THAT THE MECHANIC AND/OR MATERIALMAN MIGHT HAVE IN ANY RETAINED AMOUNTS, ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID BUILDING OR PREMISES.
GIVEN UNDER HAND AND SEAL THIS DAY OF , .
(SEAL)
(WITNESS)
(ADDRESS)
O.C.G.A. § 44-14-366
Provided, however, that the failure to correctly complete any of the blank spaces in the above form shall not invalidate said form so long as the subject matter of said release may reasonably be determined.
(e) When a claimant is requested to execute a waiver and release in exchange for or in order to induce making of final payment, the waiver and release shall substantially follow the language of the following form, be in at least 12 point font, and need not be in boldface capital letters:
“WAIVER AND RELEASE OF LIEN AND PAYMENT BOND RIGHTS UPON FINAL PAYMENT
STATE OF GEORGIA
COUNTY OF
THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY (NAME OF CONTRACTOR) TO FURNISH (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF , COUNTY OF , AND IS OWNED BY (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)
UPON THE RECEIPT OF THE SUM OF $, THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID PROPERTY.
GIVEN UNDER HAND AND SEAL THIS DAY OF , .
(SEAL)
(WITNESS)
(ADDRESS)
O.C.G.A. § 44-14-366
Provided, however, that the failure to correctly complete any of the blank spaces in the above form shall not invalidate said form so long as the subject matter of said release may reasonably be determined.
(f) Nothing contained in this Code section shall affect:
(1) The enforceability of any subordination of lien rights by a potential lien claimant to the rights of any other party which may have or acquire an interest in all or any part of the real estate, factories, railroads, or other property for which the potential lien claimant has furnished labor, services, or material, even though such subordination is entered into in advance of furnishing labor, services, or material and even though the claimant has not actually received payment in full for its claim;
(2) The enforceability of any waiver of lien rights given in connection with the settlement of a bona fide dispute concerning the amount due the lien claimant for labor, services, or material which have already been furnished;
(3) The validity of a cancellation or release of a recorded claim of lien or preliminary notice of lien rights; or
(4) The provisions of paragraph (2) of subsection (a) of Code Section 44-14-361.2, paragraphs (3) and (4) of subsection (a) and subsections (b) and (c) of Code Section 44-14-361.4, or Code Section 44-14-364.
(g)(1) When a waiver and release provided for in this Code section is executed by the claimant, it shall be binding against the claimant for purposes of the waiver of lien and labor or material bond rights to the extent stated in the waiver and release, subject only to the provisions of paragraphs (2) and (3) of this subsection.
(2) Such lien and labor or material bond waivers and releases shall conclusively be deemed effective upon the earliest to occur of:
(A) Actual receipt of funds in the amount set forth in the waiver and release;
(B) Execution by the claimant of a separate written acknowledgment of payment in full; or
(C) Ninety days after the date of the execution of the waiver and release, unless prior to the expiration of said 90 day period the claimant files in the county in which the property is located an affidavit of nonpayment, using substantially the language in the following form, where such language shall be in at least 12 point font and need not be in boldface capital letters:
| “AFFIDAVIT OF NONPAYMENT UNDER | | | | --- | --- | --- | | | | | | O.C.G.A. § 44-14-366 | | | | | STATE OF GEORGIA | | | | COUNTY OF | | | | | | | | THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY (NAME OF CONTRACTOR) TO FURNISH (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF , COUNTY OF , AND IS OWNED BY (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: | | | | | _______________________________________________________________________________________________ | | | | _______________________________________________________________________________________________ | | | | _______________________________________________________________________________________________ | | | | | | | | (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.) | | | PURSUANT TO O.C.G.A. 44-14-366 THE UNDERSIGNED EXECUTED A LIEN WAIVER AND RELEASE WITH RESPECT TO THIS PROPERTY DATED,. THE AMOUNT SET FORTH IN SAID WAIVER AND RELEASE ($) HAS NOT BEEN PAID IN FULL AND $ OF THE AMOUNT SET FORTH IN SAID WAIVER AND RELEASE REMAINS UNPAID, AND THE UNDERSIGNED HEREBY GIVES NOTICE OF SUCH NONPAYMENT. | | | | | | | | THE ABOVE FACTS ARE SWORN TRUE AND CORRECT BY THE UNDERSIGNED, THIS DAY OF __________, ____. | | | | | | | | | ____________________ (SEAL) | | | | CLAIMANT'S SIGNATURE | | | | | | | | | | | SWORN TO AND EXECUTED | | | | IN THE PRESENCE OF: | | | | _______________ | | | | WITNESS | | | | _______________ | | | | NOTARY PUBLIC | |
WITHIN SEVEN DAYS OF FILING THIS AFFIDAVIT OF NONPAYMENT, THE FILING PARTY SHALL SEND A COPY OF THE AFFIDAVIT BY REGISTERED OR CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY TO THE OWNER OF THE PROPERTY. IF THE FILING PARTY IS NOT IN PRIVITY OF CONTRACT WITH THE PROPERTY OWNER AND A NOTICE OF COMMENCEMENT IS FILED FOR THE IMPROVEMENT ON THE PROPERTY FOR WHICH THE FILING PARTY'S LABOR, SERVICES, OR MATERIALS WERE FURNISHED, A COPY OF THE AFFIDAVIT SHALL BE SENT TO THE CONTRACTOR AT THE ADDRESS SHOWN ON THE NOTICE OF COMMENCEMENT. WHENEVER THE OWNER OF THE PROPERTY IS AN ENTITY ON FILE WITH THE SECRETARY OF STATE'S CORPORATIONS DIVISION, SENDING A COPY OF THE AFFIDAVIT TO THE COMPANY'S ADDRESS OR THE REGISTERED AGENT'S ADDRESS ON FILE WITH THE SECRETARY OF STATE SHALL BE DEEMED SUFFICIENT.”
(3) A claimant who is paid, in full, the amount set forth in the waiver and release form after filing an affidavit of nonpayment shall upon request execute in recordable form an affidavit swearing that payment in full has been received. Upon recordation thereof in the county in which the Affidavit of Nonpayment was recorded, the affidavit of nonpayment to which it relates shall be deemed void.
(4) Nothing in this Code section shall shorten the time within which to file a claim of lien.
(5) A waiver and release provided in this Code section shall be suspended upon filing of an affidavit of nonpayment until payment in full has been received.
(6) The claimant may rely upon the information contained in the waiver and release form when completing for filing the affidavit of nonpayment.
Failure of a lien claimant to commence a lien action to collect the amount of his or her claim within 365 days from the date of filing the lien, or failure of the lien claimant to file the statutory notice of commencement of lien action in the county where the property is located, renders the claim of lien unenforceable. A claim of lien may be disregarded if no notice of commencement of lien action was filed within 395 days from the date the claim of lien was filed. Any lien filed after March 31, 2009, shall include on the face of the lien the following statement in at least 12 point bold font: “This claim of lien expires and is void 395 days from the date of filing of the claim of lien if no notice of commencement of lien action is filed in that time period.” Failure to include such language shall invalidate the lien and prevent it from being filed. No release or voiding of such liens shall be required. A lien shall expire sooner and be disregarded once it is determined that no notice of commencement was timely filed in response to a notice of contest pursuant to Code Section 44-14-368.
(a) An owner or an owner's agent or attorney, or the contractor or contractor's agent or attorney, may elect to shorten the time prescribed in which to commence a lien action to enforce any claim of lien by recording in the superior court clerk's office a notice in substantially the following form, in boldface capital letters in at least 12 point font, along with proof of delivery upon the lien claimant:
“ NOTICE OF CONTEST OF LIEN
TO: [NAME AND ADDRESS OF LIEN CLAIMANT]
YOU ARE NOTIFIED THAT THE UNDERSIGNED CONTESTS THE CLAIM OF LIEN FILED BY YOU ON 20, AND RECORDED IN BOOK , PAGE OF THE PUBLIC RECORDS OF COUNTY, GEORGIA, AGAINST PROPERTY OWNED BY , AND THAT THE TIME WITHIN WHICH YOU MAY COMMENCE A LIEN ACTION TO ENFORCE YOUR LIEN IS LIMITED TO 60 DAYS FROM RECEIPT OF THIS NOTICE. THIS DAY OF , 20.
O.C.G.A. SECTION 44-14-361.1
SIGNED:
(OWNER, CONTRACTOR, AGENT OR ATTORNEY) ”
(b) The clerk of the superior court shall cross-reference the notice of contest of lien to the lien. The owner or his or her agent or attorney, or the contractor or his or her agent or attorney, shall send a copy of the notice of contest of lien within seven days of filing by registered or certified mail or statutory overnight delivery to the lien claimant at the address noted on the face of the lien. Service shall be deemed complete upon mailing.
(c) The lien shall be extinguished by law 90 days after the filing of the notice of contest of lien if no notice of commencement of lien action is filed in that time period. No release or voiding of such liens shall be required. This subsection shall not be construed to extend the time in which a lien action must begin.
For the purposes of this part, the computation of time shall be determined pursuant to paragraph (3) of subsection (d) of Code Section 1-3-1.
Laborers shall have a general lien upon the property of their employers which is liable to levy and sale for their labor, which lien is superior to all other liens except liens for taxes, the special liens of landlords on yearly crops, and such other liens as are declared by law to be superior to them.
Laborers shall also have a special lien on the products of their labor, which lien shall be superior to all other liens except liens for taxes and special liens of landlords on yearly crops.
Liens of laborers shall arise upon the completion of the contract of labor but shall not exist against bona fide purchasers without notice until they have been reduced to execution and levied on by an officer. Laborers' liens which conflict with each other shall rank according to date, each dating from the completion of the contract of labor.
Pawnbrokers, factors, bailees, and acceptors shall have such liens as are designated in this part and in Part 5 of Article 3 of Chapter 12 of this title. Such liens shall be inferior to liens for taxes, liens of which such persons had actual notice before becoming creditors, special liens for rent, liens of laborers, liens or mortgages duly recorded, judgment liens, and other general liens reduced to execution and levied on.
Depositories shall have such liens as are prescribed in this part and in Part 5 of Article 3 of Chapter 12 of this title and shall, as to other liens, occupy the same position as mechanics. The liens mentioned in this Code section and in Code Section 44-14-400 shall be lost by a surrender to the debtor of the property on which the lien is claimed, and they shall rank according to date with each other and with other liens not specified in this Code section and in Code Section 44-14-400.
Depositories for hire shall have a lien for their hire and may retain possession until it is paid.
(a) A pawnbroker shall have a lien on the pledged goods pawned for the money advanced, interest, and pawnshop charge owed but not for other debts due to him. He may retain possession of the pledged goods until his lien is satisfied and may have a right of action against anyone interfering therewith.
(b)(1) There shall be a grace period on all pawn transactions. On pawn transactions involving motor vehicles or motor vehicle certificates of title, the grace period shall be 30 calendar days; on all other pawn transactions the grace period shall be ten calendar days. In the event that the last day of the grace period falls on a day in which the pawnbroker is not open for business, the grace period shall be extended through the first day following upon which the pawnbroker is open for business. The pawnbroker shall not sell the pledged goods during the grace period.
(2) By agreement of the parties, the maturity date of the pawn transaction may be extended or continued for 30 day periods, provided that the interest rates and charges as specified in Code Section 44-12-131 are not exceeded. The grace period shall begin running on the first day following the maturity date of the pawn transaction or on the first day following the expiration of any extension or continuation of the pawn transaction, whichever occurs later. All extensions or continuations of the pawn transaction shall be evidenced in writing.
(3) Pledged goods may be redeemed by the pledgor or seller within the grace period by the payment of any unpaid accrued fees and charges, the repayment of the principal, and the payment of an additional interest charge not to exceed 12.5 percent of the principal. Pledged goods not redeemed within the grace period shall be automatically forfeited to the pawnbroker by operation of this Code section, and any ownership interest of the pledgor or seller shall automatically be extinguished as regards the pledged item.
(4) Any attempt to circumvent the interest rates and charges as specified in Code Section 44-12-131 shall be null and void. A pawn transaction shall be considered to have been extended or continued unless:
(A) All charges, fees, and the principal have actually been paid or repaid on the previous pawn transaction;
(B) The pledged goods in the previous transaction, including but not limited to a motor vehicle certificate of title, have actually been restored to the possession of the pledgor or seller; and
(C) The pledged goods in the previous transaction have been removed from the business premises of the pawnbroker and, in the case of a motor vehicle certificate of title, any lien on the motor vehicle certificate of title has been removed or released.
A factor's lien extends to all balances on general account and attaches to the proceeds of the sale of goods consigned as well as to the goods themselves.
Liens of factors and acceptors shall be satisfied by such sale as the usage of the locality where the factors and acceptors reside has established or may establish.
Livery stable keepers shall have a lien for their charges on the stock placed in their care for keeping, which lien shall be superior to other liens except liens for taxes, special liens of landlords for rent, liens of laborers, and all general liens of which they had actual notice before the property claimed to be subject to lien came into their control.
(a) In addition to the method provided in Code Section 44-14-406, every livery stable keeper may assert the lien on stock placed in his care for keeping by writing a statement of the amount due him for the care of the stock and a description of the stock on which the lien is claimed, by making affidavit thereto, and by recording the writing and affidavit in the office of the clerk of the superior court of the county where the service was rendered.
(b) When the lien provided for in subsection (a) of this Code section is so recorded, it shall have the same dignity and effect as is given by law to the lien of livery stable keepers where they retain possession of the stock placed in their keeping. The lien shall be recorded while the property is in the possession of the livery stable keeper, as mortgages on personalty are required to be recorded; and such liens may be foreclosed as mortgages on personalty are foreclosed.
Liens of pawnbrokers and livery stable keepers shall be satisfied according to Code Sections 44-14-403 and 44-14-550, respectively.
The bailee for hire of labor and service shall have a special lien for his labor and services upon the thing bailed until he parts with possession; and, if he delivers up a part of the thing bailed, the lien shall attach to the remainder in his possession for the entire claim under the same contract.
Except as provided in Code Section 44-14-411.1, involuntary, gratuitous, or naked depositories shall have a lien on the property in their possession for any expense incurred in caring for the property and any expenses incurred in the effort to locate the owner thereof. Where the property consists of closed trunks, suitcases, bags, boxes, bundles, packages, or other containers which do not on the outside contain marks from which the owner can be ascertained, such depositories are authorized, but are not required, to open such containers for the purpose of ascertaining, if possible, the name and address of the owner. Where the owner and his address are known, the depository is authorized, but is not required, to address a notice by registered or certified mail or statutory overnight delivery to the owner notifying him that the depository holds the property and that the property will be delivered to the owner upon reasonable identification and payment of any charges that have accrued in caring for the property and in giving such notice.
Except as provided in Code Section 44-14-411.1, any property in the possession of an involuntary, gratuitous, or naked depository, which property remains unclaimed or unidentified or the reasonable expense incurred in connection with which remains unpaid for the period of two months from the time the property came into the possession of the depository, may be sold at public auction to the highest bidder at such time and place as may be designated by the depository; provided, however, that the depositories shall publish a notice containing a general description of the property and the time and place of sale once a week for two successive weeks prior to the date of the sale in a newspaper of general circulation in the place of the sale or the nearest place thereto.
(a) Any person who lawfully repossesses a motor vehicle shall be an involuntary, gratuitous, or naked depository of any personal property found in such motor vehicle and shall have a lien on such property for any reasonable expenses incurred in storing such property or in giving notice to such owner.
(b) Within ten days of the date of repossession, the person repossessing such motor vehicle shall notify the owner of the motor vehicle of the intent to dispose of the personal property. Such notice must be actual notice, but may be by personal service or by service by certified mail or statutory overnight delivery.
(c) If the personal property is not redeemed within 30 days from the date of the first notice, a second notice shall be sent in the same manner as provided in subsection (b) of this Code section.
(d) If the personal property is not redeemed within 30 days from the date of the second notice, the personal property may be disposed of in the manner most expeditious to the depository without further liability and the proceeds shall be disbursed as provided in Code Section 44-14-412.
The proceeds of any sale made under Code Sections 44-14-410, 44-14-411, and 44-14-411.1 shall be applied to the payment of any expense incurred in caring for the property sold, any expense incurred in endeavoring to locate and make delivery of the property to the owner, any expense of advertising the sale, and any other necessary expenses. Should there be a balance, the balance shall be payable to the owner of the property; provided, however, that any claim of an owner shall be barred unless made within one year from the date of the sale.
In order to enforce his lien for materials furnished and work done, any jeweler or any other person, firm, or corporation engaged in the business of repairing watches, clocks, jewelry, and other articles of similar character may sell those articles upon which charges for repairs, including work done and materials furnished, have not been paid and which have remained in the possession of the jeweler, person, firm, or corporation for a period of one year following the completion of the repairs.
Before any sale is made as provided in Code Section 44-14-430, the person, firm, or corporation making the sale shall give 30 days' notice thereof by posting a notice of the sale before the courthouse door of the county in which the repairs were made. Such notice shall give the name of the owner of the article or articles so repaired, if known, and, if not known, the name of the person from whom the article or articles were received; a description of the article or articles to be sold; and the name of the person, firm, or corporation making the repairs and proposing to make such sale. The person, firm, or corporation shall also give written notice thereof by sending a registered or certified letter to the last known address of the owner of the article or articles or the person who left the article or articles for repairs advising such persons of the time and place of the sale, the description of the article or articles to be sold, and the amount claimed by the person, firm, or corporation for such repairs, including work done and materials furnished; and the amount so claimed for the repairs shall also be stated in the notice posted before the courthouse door.
All sales made under this part shall be made at public auction before the courthouse door of the county where the person, firm, or corporation making the sale had its place of business at the time of receiving the article or articles to be sold and during the hours provided by law for holding sheriffs' sales.
The proceeds of any sale made under this part shall be applied first to the payment of the lien for services rendered by the person, firm, or corporation making the sale for work done and materials furnished in repairing the article or articles sold, including the cost of the registered notice provided for in Code Section 44-14-431. Any residue shall be paid to the judge of the probate court of the county where the sale took place, who shall hold the sum for a period of one year, during which time the owner or owners of the article or articles so sold may claim the residue; but, at the end of the period of one year, if the residue has not been claimed by the owner or owners of the article or articles sold, the residue shall be placed by the judge in the educational fund of the county where the sale was made.
Any jeweler or other person, firm, or corporation desiring to avail himself of the provisions of this part shall display a sign in his place of business notifying the public that all articles left for repairs will be sold for charges at the expiration of one year from completion of such repairs.
All persons, firms, or corporations engaged in the business of laundering, cleaning, tailoring, altering, repairing, or dyeing clothing, goods, wearing apparel, shoes, carpets, rugs, or other such articles shall, for the agreed price or the reasonable value of their services in laundering, cleaning, tailoring, altering, repairing, or dyeing any goods, clothing, wearing apparel, shoes, carpets, rugs, or other similar articles, have a lien upon the articles laundered, cleaned, tailored, altered, repaired, or dyed, whether the work of laundering, cleaning, tailoring, altering, repairing, or dyeing the articles is performed by themselves or by their employees.
Any persons, firms, or corporations shall have the right to retain possession of the articles laundered, cleaned, tailored, altered, repaired, or dyed by them until their charges have been paid; but, if any articles are delivered to the person for whom the service was performed without collecting the agreed price or reasonable value of laundering, cleaning, tailoring, altering, repairing, or dyeing the articles, the lien shall be lost upon the articles so delivered but shall attach to any other goods, clothing, wearing apparel, shoes, or other articles belonging to the person for whom the work was done, which articles may later come into the possession of such person, firm, or corporation for the purpose of being laundered, cleaned, tailored, altered, repaired, or dyed.
A lien under this part shall have the same rank as the special lien of laborers on the products of their labor and may be foreclosed in the same manner.
(a) In order to satisfy the lien of the person, firm, or corporation performing the service, whenever any clothing, goods, wearing apparel, shoes, carpets, rugs, or other such articles remain in the possession of any person, firm, or corporation engaged in the business of laundering, cleaning, tailoring, altering, repairing, or dyeing such articles for a period of 90 days after the person, firm, or corporation has performed any services thereon without the agreed price or the reasonable value of the service being paid, the goods or articles may be sold by the person, firm, or corporation having performed the service in the manner and subject to the requirements of Code Sections 44-14-454 and 44-14-455.
(b) As an alternative to the satisfaction of the lien as provided in subsection (a) of this Code section, an establishment accepting property to provide the services described in this part may at the time of accepting the property give to the person delivering the property to the establishment notice, which may be in the form of a sign clearly visible to a person delivering property to the establishment, that, if the property is not claimed and the agreed upon price or reasonable value for the service is not paid within 120 days after the service was performed, the establishment may otherwise dispose of the property without further notice to the owner of the property or to the person who delivered the property to the establishment. A person delivering property to an establishment for the performance of services described in this part who receives notice provided for in this subsection and who does not object to the content of such notice shall be deemed to have contractually waived any additional rights that may otherwise attach to disposition of the property, and if the person delivering the property to the establishment is not its owner, the contractual waiver of rights shall extend to the owner of the property if the person who delivered the property to the establishment was in lawful possession of the property at the time it was delivered. Property subject to the provisions of this subsection may be otherwise disposed of in such manner as the establishment possessing the property shall determine.
Before any sale shall be made as provided in subsection (a) of Code Section 44-14-453, the person, firm, or corporation making the sale shall give ten days' notice thereof by mail to the last known address of the owner if known, or otherwise to the last known address of the person from whom the goods were received. Such notice shall give the name of the owner of the goods, if known, and, if not known, the name of the person from whom the goods were received; a description of the goods to be sold; the time and place of the sale; the amount of the charges for which the goods or articles will be sold; and the name of the person, firm, or corporation having possession of the goods or articles and proposing to make the sale.
The proceeds of any sale made under subsection (a) of Code Section 44-14-453 shall be applied first to the payment of the lien for services rendered by the person, firm, or corporation making the sale for its services in laundering, cleaning, tailoring, altering, repairing, or dyeing the articles sold; and the residue, if any, shall be paid on demand to the owner of the goods sold.
The method of satisfaction of the liens referred to in this part shall be cumulative of any other remedies provided by law for the foreclosure or satisfaction of such liens.
All persons, firms, or corporations engaged in the business of servicing or repairing bicycles, motor scooters, mopeds, motorcycles, lawn mowers, garden equipment, or other such related equipment shall, for the agreed price or the reasonable value of their services in servicing or repairing such equipment, have a lien upon the equipment serviced or repaired, whether the work of servicing or repairing the equipment is performed by themselves or by their employees.
Any persons, firms, or corporations shall have the right to retain possession of the equipment repaired by them until their charges have been paid; but, if any equipment is delivered to the person for whom the service or repair was performed without collecting the agreed price or reasonable value of servicing or repairing the equipment, the lien shall be lost upon the equipment so delivered.
A lien under this part shall have the same rank as the special lien of laborers on the products of their labor and may be foreclosed in the same manner.
In order to satisfy the lien of the person, firm, or corporation performing the service or repair, whenever any bicycles, motor scooters, mopeds, motorcycles, lawn mowers, garden equipment, or such other related equipment remains in the possession of any person, firm, or corporation engaged in the business of servicing or repairing such equipment for a period of 60 days after the person, firm, or corporation has performed any services or repairs thereon without the agreed price or the reasonable value of the service or repair being paid, the equipment may be sold by the person, firm, or corporation having performed the service or repair, provided that the requirements of Code Section 44-14-464 are satisfied.
Before any sale shall be made as provided in Code Section 44-14-463, the person, firm, or corporation making the sale shall give ten days' notice thereof by certified mail or statutory overnight delivery evidenced by return receipt to the last known address of the owner if known, or otherwise to the last known address of the person from whom the equipment was received. Such notice shall give the name of the owner of the equipment, if known, and, if not known, the name of the person from whom the equipment was received; a description of the equipment to be sold; the time and place of the sale; the amount of the charges for which the equipment will be sold; and the name of the person, firm, or corporation having possession of the equipment and proposing to make the sale. If such equipment is not claimed during the ten days following the date that notice was mailed, the equipment may be sold.
The proceeds of any sale made under this part shall be applied first to the payment of the lien for services or repairs rendered by the person, firm, or corporation making the sale for its services in repairing or servicing the equipment sold; and the residue, if any, shall be paid on demand to the owner of the equipment sold.
The method of satisfaction of the liens referred to in this part shall be cumulative of any other remedies provided by law for the foreclosure or satisfaction of such liens.
(a) Except where the context otherwise requires in subsection (b) of this Code section, as used in this part, the term:
(1) “Chiropractic practice” means any chiropractic practice that includes one or more chiropractors licensed to practice chiropractic in this state.
(2) “Hospital” means any hospital or nursing home subject to regulation and licensure by the Department of Community Health.
(3) “Hospital care, treatment, or services” means care, treatment, or services furnished by a hospital or nursing home.
(4) “Nursing home” means any intermediate care home, skilled nursing home, or intermingled home.
(5) “Physician practice” means any medical practice that includes one or more physicians licensed to practice medicine in this state.
(6) “Traumatic burn care medical practice” means care, treatment, or services rendered by a medical practice with respect to a patient whose burn care, treatment, or services resulted in charges in excess of $50,000.00, arising out of a single accident or occurrence.
(b) Any person, firm, hospital authority, or corporation operating a hospital, nursing home, physician practice, or chiropractic practice, or providing traumatic burn care medical practice in this state shall have a lien for the reasonable charges for hospital, nursing home, physician practice, chiropractic practice, or traumatic burn care medical practice care and treatment of an injured person, which lien shall be upon any and all causes of action accruing to the person to whom the care was furnished or to the legal representative of such person on account of injuries giving rise to the causes of action and which necessitated the hospital, nursing home, physician practice, chiropractic practice, or provider of traumatic burn care medical practice care, subject, however, to any attorney's lien and in the case of any chiropractic lien, said lien shall also be subject to any hospital lien. The lien provided for in this subsection is only a lien against such causes of action and shall not be a lien against such injured person, such legal representative, or any other property or assets of such persons and shall not be evidence of such person's failure to pay a debt. This subsection shall not be construed to interfere with the exemption from this part provided by Code Section 44-14-474.
(a) In order to perfect the lien provided for in Code Section 44-14-470, the operator of the hospital, nursing home, physician practice, chiropractic practice, or provider of traumatic burn care medical practice:
(1) Shall, not less than 15 days prior to the date of filing the statement required under paragraph (2) of this subsection, provide written notice to the patient and, to the best of the claimant's knowledge, the persons, firms, corporations, and their insurers claimed by the injured person or the legal representative of the injured person to be liable for damages arising from the injuries and shall include in such notice a statement that the lien is not a lien against the patient or any other property or assets of the patient and is not evidence of the patient's failure to pay a debt. Such notice shall be sent to all such persons and entities by first-class and certified mail or statutory overnight delivery, return receipt requested; and
(2) Shall file in the office of the clerk of the superior court of the county in which the hospital, nursing home, physician practice, chiropractic practice, or provider of traumatic burn care medical practice is located and in the county wherein the patient resides, if a resident of this state, a verified statement setting forth the name and address of the patient as it appears on the records of the hospital, nursing home, physician practice, chiropractic practice, or provider of traumatic burn care medical practice; the name and location of the hospital, nursing home, physician practice, chiropractic practice, or provider of traumatic burn care medical practice and the name and address of the operator thereof; the dates of admission and discharge of the patient therefrom or with respect to a physician practice or chiropractic practice, the dates of treatment; and the amount claimed to be due for the hospital, nursing home, physician practice, chiropractic practice, or provider of traumatic burn care medical practice care, which statement must be filed within the following time period:
(A) If the statement is filed by a hospital, nursing home, or provider of traumatic burn care medical practice, then the statement shall be filed within 75 days after the person has been discharged from the facility; or
(B) If the statement is filed by a physician practice or chiropractic practice, then the statement shall be filed within 90 days after the person first sought treatment from the physician practice or chiropractic practice for the injury.
(b) The filing of the claim or lien shall be notice thereof to all persons, firms, or corporations liable for the damages, whether or not they received the written notice provided for in this Code section. The failure to perfect such lien by timely complying with the notice and filing provisions of paragraphs (1) and (2) of subsection (a) of this Code section shall invalidate such lien, except as to any person, firm, or corporation liable for the damages, which receives prior to the date of any release, covenant not to bring an action, or settlement, actual notice of a notice and filed statement made under subsection (a) of this Code section, via hand delivery, certified mail, return receipt requested, or statutory overnight delivery with confirmation of receipt.
(c) No filing of a claim or lien under this part shall be enforceable unless the person, firm, hospital authority, or corporation operating a hospital, nursing home, physician practice, chiropractic practice, or traumatic burn care medical practice filing such claim or lien first submitted a claim to each health insurer of the injured person, if such injured person has health insurance coverage, and had such claim rejected.
The clerk of the superior court shall endorse the date and hour of filing on the statement filed pursuant to Code Section 44-14-471; and, at the expense of the county, the clerk shall provide a lien book with a proper index in which the clerk shall enter the date and hour of the filing; the names and addresses of the hospital, nursing home, physician practice, chiropractic practice, or provider of traumatic burn care medical practice, the operators thereof, and the patient; and the amount claimed. The information shall be recorded in the name of the patient. The clerk shall receive a fee as required by subparagraph (f)(1)(A) of Code Section 15-6-77 as his or her fee for such filing.
(a) No release of the cause or causes of action or of any judgment thereon or any covenant not to bring an action thereon shall be valid or effectual against the lien created by Code Section 44-14-470 unless the holder thereof shall join therein or execute a release of the lien; and the claimant or assignee of the lien may enforce the lien by an action against the person, firm, or corporation liable for the damages or such person, firm, or corporation's insurer. If the claimant prevails in the action, the court may allow reasonable attorney's fees. The action shall be commenced against the person liable for the damages or such person's insurer within one year after the date the liability is finally determined by a settlement, by a release, by a covenant not to bring an action, or by the judgment of a court of competent jurisdiction.
(b) No release or covenant not to bring an action which is made before or after the patient was discharged from the hospital, nursing home, chiropractic practice, or provider of traumatic burn care medical practice or, with respect to a physician practice, which is made after the patient first sought treatment from the physician practice or chiropractic practice for the injuries shall be effective against the lien perfected in accordance with Code Section 44-4-471, if such lien is perfected prior to the date of the release, covenant not to bring an action, or settlement unless consented to by the lien claimant; provided, however, that any person, firm, or corporation which consummates a settlement, release, or covenant not to bring an action with the person to whom hospital, nursing home, physician practice, chiropractic practice, or traumatic burn care medical practice care, treatment, or services were furnished and which first procures from the injured party an affidavit as prescribed in subsection (c) of this Code section shall not be bound or otherwise affected by the lien except as provided in subsection (c) of this Code section, regardless of when the settlement, release, or covenant not to bring an action was consummated.
(c) The affidavit shall affirm:
(1) That all hospital, nursing home, physician practice, chiropractic practice, or provider of traumatic burn care medical practice bills incurred for treatment for the injuries for which a settlement is made have been fully paid; and
(2) The county of residence of such affiant, if a resident of this state;
provided, however, that the person taking the affidavit shall not be protected thereby where the affidavit alleges the county of the affiant's residence and the lien of the claimant is at such time on file in the office of the clerk of the superior court of the county and is recorded in the name of the patient as it appears in the affidavit.
This part shall not apply to any moneys becoming due under Chapter 9 of Title 34.
No settlement or release entered into or executed prior to the entry of the injured party into the hospital, nursing home, or facility which provides traumatic burn care medical practice or prior to the time the patient first sought treatment from the physician practice or chiropractic practice for the injuries shall be affected by or subject to the terms of this part.
This part shall not be construed to give any hospital, nursing home, physician practice, chiropractic practice, or provider of traumatic burn care medical practice referred to in this part an independent right of action to determine liability for injuries sustained by a person or firm.
Any person who gives any false affidavit as provided by Code Section 44-14-473 commits the offense of false swearing.
(a) Every licensed veterinarian shall have a lien on each animal or pet treated, boarded, or cared for by him or her while in his or her custody and under contract with the owner of the animal or pet for the payment of charges for the treatment, board, or care of the animal or pet; and the veterinarian shall have the right to retain the animal or pet until the charges are paid.
(b)(1) As used in this subsection, the term:
(A) “Charges” means:
(i) Any charges, fees, expenses, and reimbursements which have been contracted for, agreed to, or otherwise mutually acknowledged by written agreement, course of conduct, or understanding, including but not limited to:
(I) Board, care, services, and treatment of the animal or pet, whether provided by the operator or by a third party and incurred by the operator;
(II) Farrier and veterinary fees and expenses incurred by the operator for or on behalf of the boarded animal or pet; and
(III) Fees and expenses for transportation of the animal or pet; and
(ii) Late payment fees, returned check fees, and all costs of collection, including but not limited to reasonable attorney's fees and expenses of litigation and costs of sale.
Charges shall not include fees, expenses, or commissions of any kind relating to purchase, sale, or lease of such animal or pet, other than a sale pursuant to Code Section 44-14-491.
(B) “Facility for boarding animals or pets” shall include, but not be limited to, veterinary hospitals, boarding kennels, stables, livestock sales barns, and humane societies.
(2) Every operator of a facility for boarding animals or pets which facility is licensed by the Department of Agriculture, other than a licensed veterinarian, shall have a lien on each animal or pet in his or her care for the payment of all charges of such operator; and the operator of such a facility shall have the right to retain the animal or pet until the charges are paid in full.
(c) Any person granted a lien by this Code section may waive such lien in writing.
(a)(1) If the charges due for any services enumerated in Code Section 44-14-490 are not paid within ten days after the demand therefor on the owner of the animal or pet or if the animal or pet is not picked up within ten days after the demand therefor on the owner of the animal or pet, which demand shall be made in person or by registered or certified mail or statutory overnight delivery with return receipt requested and addressed to the owner at the address given when the animal or pet was delivered, the animal or pet shall be deemed to be abandoned and the licensed veterinarian or operator of a facility is authorized to dispose of the animal or pet in such manner as such veterinarian or operator shall determine. Such ten-day period will begin to run on the date the demand is postmarked or the date the verbal command is communicated in person and shall be noted on the veterinarian's or operator's file on the animal or pet. For purposes of this subsection, the term “dispose of” means selling the animal or pet at public or private sale, giving the animal or pet away, or turning the animal or pet over to any humane society or animal shelter or other such facility. Where no such shelter facility exists within a 50 mile radius of the veterinarian or operator of a facility's place of business and the veterinarian or operator has been unable to sell or give the animal away, then the veterinarian or operator is authorized to euthanize the animal in a humane manner.
(2) On the day of the disposal of the animal or pet, the veterinarian or operator of a facility shall notify the owner in person, by telephone, or by registered or certified mail or statutory overnight delivery with return receipt requested at the address given when the animal or pet was delivered, of the date of the disposal and the manner in which the animal was disposed.
(3) The disposal of an animal or pet as provided in this Code section shall not relieve the owner or owner's agent of any financial obligations incurred for treatment, boarding, or care by a veterinarian or operator of a facility for boarding animals or pets.
(b) The giving of notice to the owner as provided for in subsection (a) of this Code section shall relieve the licensed veterinarian, the operator of a facility for boarding animals or pets, or any custodian who disposes of such animal or pet of any further liability for such disposal.
(c) Failure of the owner of any such animal or pet to receive the demand by registered or certified mail or statutory overnight delivery provided for in paragraph (1) of subsection (a) of this Code section shall not render the licensed veterinarian or operator of a facility liable to the owner of such animal or pet for the disposal thereof in any manner provided in this Code section.
When any animal or pet is sold as authorized in this part to satisfy a lien for any of the services enumerated in Code Section 44-14-490, any surplus realized from the sale after payment of the charges and any expenses incurred in making the demand for payment thereof in connection with the sale shall be paid to the owner of the animal or pet.
Other than compliance with the requirements of this part, no legal proceedings shall be necessary for the enforcement of the lien created by this part.
It shall not constitute a violation of Code Section 16-12-4 if a licensed veterinarian or an operator of a facility for boarding animals or pets disposes of an animal or pet as provided in Code Section 44-14-491.
Every officer and employee or guardian of any employee on any watercraft engaged in the navigation of any river within the borders or forming the boundary of this state shall have a lien upon the boat or craft for any debts, dues, wages, or demands that they may have against the owner or lessee of the boat or craft, for personal services in connection with the boat, or for wood or provisions furnished the boat, which lien shall be superior to all liens except liens for taxes and such other liens as the claimant had actual notice of before the debt was created.
The owner or keeper of any stallion, jack, or blooded or imported bull or boar shall have a lien upon the offspring thereof for the service of the stallion, jack, or blooded or imported bull or boar for the period of one year from the birth of the offspring, which lien shall be superior to all other liens except the lien for taxes, provided that the owners shall keep their animals enclosed in their own pastures or otherwise. The lien provided for in this Code section shall not become operative unless it is recorded in the office of the clerk of the superior court of the county where the owner of the mother resides within six months after the performance of the service. The clerk shall keep a book in which all such liens are to be recorded and shall receive a fee as required by subparagraph (f)(1)(A) of Code Section 15-6-77 for recording such liens.
Any person hauling stocks, logs, or lumber for another person shall have a lien against the personalty so hauled by him to the extent of the amount of the indebtedness, if by contract, and to the extent of the value of the services so rendered, if the price to be paid for the hauling is not agreed upon.
Proprietors of planing mills and other similar establishments shall have the same lien as provided in Code Section 44-14-363 for work done on material furnished by others; and, when they furnish material, they shall have the same liens provided for in Code Section 44-14-361 for materialmen. Proprietors of sawmills, when furnishing material for the improvement of real estate to purchasers from them for that purpose, shall be entitled to the lien provided for in Code Section 44-14-361, said lien to be governed by the rules laid down in Code Section 44-14-361 when the same are applicable.
Laborers in mills and other establishments mentioned in Code Section 44-14-513 shall have the same lien as is provided for laborers in Code Sections 44-14-380 and 44-14-381.
All persons furnishing sawmills with timber, logs, provisions, or any other thing necessary to carry on the work of sawmills shall have liens on the mills and their products, which liens shall, as between themselves, rank according to date, and the date of each shall be from the time when the debt was created. The liens shall be superior to all liens except liens for taxes; liens for labor as provided for in Code Sections 44-14-380, 44-14-381, and 44-14-514; and all general liens of which they have actual notice before their debts were created.
(a) For the purposes of this Code section, the term “bad check” means a check drawn for payment of money on any bank or other depository in exchange for merchandise or for services rendered on merchandise when:
(1) The drawer had no account with the drawee at the time the check was drawn;
(2) Payment was refused by the drawee for lack of funds in the account of the drawer upon presentation within 30 days after delivery and the drawer or someone for him shall not have paid the payee the amount due thereon within ten days after receiving written notice mailed by certified or registered mail or statutory overnight delivery that payment was refused upon such instrument; or
(3) Notice mailed by certified or registered mail or statutory overnight delivery as provided in paragraph (2) of this subsection is returned undelivered to the sender when such notice was mailed within a reasonable time of dishonor to the address printed on the check or given by the drawer at the time of issuance of the check.
(b) The payee of any bad check written in full or partial payment for merchandise or for services rendered on merchandise, delivered at the time of the acceptance of the check, shall have a lien for the face amount of the check on the merchandise so delivered. Such liens shall occupy the same position as mechanics' liens and shall be perfected in the same manner as mechanics' liens.
(c) The payee of any check written in full or partial payment for merchandise or for services rendered on merchandise, delivered at the time of the acceptance of the check and on which the payer subsequently issues a stop payment order, shall have a lien for the face amount of the check on the merchandise so delivered if the stop payment order was issued within five days after the delivery of the merchandise. Such liens shall occupy the same position as mechanics' liens and shall be perfected in the same manner as mechanics' liens.
Pursuant to the authority granted to states by Section 107 of Title I of the federal Superfund Amendments and Reauthorization Act of 1986, 1P.L. 99-499, 100 STAT. 1613, 1630, all liens imposed pursuant to such federal act shall be filed in the office of the clerk of the superior court of the county in this state in which the real property subject to the lien is located and shall be filed in the same manner as deeds are recorded.
1 42 U.S.C.A. §§ 9607, 9651.
(a) Any person engaged in repair, storage, servicing, or furnishing supplies or accessories for aircraft or aircraft engines or providing contracts of indemnity for aircraft shall have a lien on such aircraft or aircraft engines for any reasonable charges therefor, including charges for labor, for the use of tools, machinery, and equipment, and for all parts, accessories, materials, oils, lubricants, storage fees, earned premiums, and other supplies furnished in connection therewith. Such lien shall be superior to all liens except liens for taxes, subject to compliance with subsection (b) of this Code section.
(b) Such lien may be asserted by the retention of the aircraft or aircraft engines, and if such lien is asserted by retention of the aircraft or aircraft engines, the lienor shall not be required to surrender the aircraft or the aircraft engine to the holder of a subordinate security interest or lien. When possession of the aircraft or aircraft engine is surrendered by the person claiming the lien, the person claiming the lien shall, within 90 days after such repair, storage, service, supplies, accessories, or contracts of indemnity are furnished:
(1) Provide written notice, subscribed and sworn to by such person or by some person in his or her behalf, giving a just and true account of the demands claimed to be due, with all just credits and the name of the person to whom the repair, storage, service, supplies, accessories, or contracts of indemnity were furnished, the name of the owner of the aircraft or aircraft engines, if known, and a description of the aircraft sufficient for identification, by personal delivery, certified mail, or statutory overnight delivery, return receipt requested, to the following:
(A) The registered owner and others holding recorded interests in the aircraft or aircraft engines at the addresses listed in the Federal Aviation Administration's Aircraft Registry; or
(B) If not a United States registered aircraft or if the aircraft engine is not subject to recordation by the Federal Aviation Administration, to the owner, if known, at his or her last known address, or, if not known, to the person to whom the repair, storage, service, supplies, accessories, or contracts of indemnity were furnished; and
(2) File such written notice for recording in the Federal Aviation Administration's Aircraft Registry in the manner prescribed by federal law under 49 U.S.C. Section 44107 for the filing of such liens for recordation, or, if not a United States registered aircraft or if the aircraft engine is not subject to recordation by the Federal Aviation Administration, with the Georgia Superior Court Clerks' Cooperative Authority or the appropriate recording authority, established by applicable state law, international treaty, or foreign law, in the manner prescribed for the filing of such liens for recordation.
(a) Liens on real property which are provided for in this chapter, other than mortgages, shall be foreclosed, when not otherwise provided for, by a compliance with his contract by the person claiming the lien and recording his claim and the commencement of an action therefor according to the provisions and requirements of Code Section 44-14-361.1. In declaring for such debt or claim, the claimant of the lien shall set forth his lien and the premise on which he claims it; and, if the lien is allowed, the verdict of the jury, if tried by a jury, or a decision of the court, if the parties consent to trial by the court without a jury, shall set it forth and the judgment and execution shall be awarded accordingly. All such executions shall, however, be subject to all prior encumbrances.
(b) If any real property on which there is a lien is sold by any process from the courts, the purchaser shall obtain the full title; and the lien shall attach to the proceeds of the sale upon a notice by the party claiming the lien to the officer to hold the money for that purpose until the next session of the superior court. If the claim of lien is disputed by either the plaintiff or the defendant in the process or decree on which the money was raised, an issue shall be ordered and tried as in other cases; and, if it is determined against the claimant, he shall pay such damages, not exceeding 20 percent, as the jury may assess, with interest from the date of the notice to retain, and costs.
(c) The delivery of possession by the person claiming the lien shall not affect his lien.
Upon the simple transfer or assignment of any rent note, mortgage note, or other such evidence of debt as mentioned in Code Sections 44-14-325 and 44-14-326, the person to whom the same may be transferred or assigned shall, without more, have full power and authority to foreclose or enforce the evidences of debt in his own name.
Liens on personal property, other than mortgages, when not otherwise provided for, shall be foreclosed in accordance with the following provisions:
(1) There shall be a demand on the owner, agent, or lessee of the property for payment and a refusal to pay; and such demand and refusal shall be averred. If, however, no such demand can be made on account of the absence from the county of his residence of the party creating the lien on personal property, by reason of his moving or absconding from the county of his residence, or other acts which show an intention to be absent from the county so as to defeat the demand, the party holding the lien shall not be obliged to make a demand but may foreclose without such demand; provided, however, that, if possession is retained or the lien recorded, the owner-debtor may contest the validity of the amount claimed to be due by making written demand upon the lienholder. If, upon receipt of the demand, the lienholder fails to institute foreclosure proceedings within ten days, where possession has been retained, or within 30 days, where possession has been surrendered, the lien is forfeited;
(2) A person asserting the lien, either for himself or as a guardian, administrator, executor, or trustee, may move to foreclose the lien by making an affidavit to a court of competent jurisdiction showing all the facts necessary to constitute a lien and the amount claimed to be due. The plaintiff shall verify the statement by oath or affirmation and shall affix his signature thereto;
(3) Upon the affidavit being filed, the clerk or a judge of the court shall serve notice upon the owner, the recorded lienholders, and the lessee of the property of a right to a hearing to determine if reasonable cause exists to believe that a valid debt exists. The hearing must be petitioned for within five days after the receipt of the notice; and, if no petition for the hearing is filed within the time allowed, the lien will conclusively be deemed a valid one and foreclosure thereof allowed;
(4) If a petition for a hearing is filed within the time allowed, the court shall set the hearing within ten days of the filing of the petition. If at the probable cause hearing the court determines that reasonable cause exists to believe that a valid debt exists, the person asserting the lien shall be given possession of the property or the court shall obtain possession of the property as ordered by the court. The defendant may retain possession of the property by giving bond and security for the amount determined to be due and for costs of the action;
(5) Within five days of the probable cause hearing, the defendant must petition the court for a full hearing on the validity of the debt if a further determination of the validity of the debt is desired. If no such petition is filed, the lien on the amount determined reasonably due shall conclusively be deemed a valid one and foreclosure thereof allowed. If such a petition is filed, the court shall set a full hearing thereon within 30 days of the filing of the petition. Upon the filing of the petition by the defendant, neither the prosecuting lienholder nor the court may sell the property, although possession of the property may be retained;
(6) If after a full hearing the court finds that a valid debt exists, the court shall authorize the foreclosure upon and the sale of the property subject to the lien to satisfy the debt if the debt is not otherwise immediately paid;
(7) If the court finds the actions of the person asserting the lien in retaining or seeking possession of the property were not taken in good faith, the court in its discretion may award damages to the owner, agent, or lessee due to the deprivation of the use of the property; and
(8) Any proceeding to foreclose a lien on personal property must be instituted within one year from the time the lien is recorded or is asserted by retention.
In all foreclosure of liens on personalty in which the property levied on is replevied and in which verdicts are found for the plaintiffs, the plaintiffs shall be granted judgments against the defendants and their securities in the same manner and with the same effect as in cases of appeal.
It is the purpose of this part to conform to Section 6323 of the United States Internal Revenue Code as amended by Public Law 89-719, entitled the Federal Tax Lien Act of 1966.
(a) Notices of liens upon real property for taxes payable to the United States and certificates and all notices affecting such liens, including certificates of redemption, shall be filed in the office of the clerk of the superior court of the county in which the real property subject to a federal tax lien is located.
(b) Notices of liens upon personal property, whether tangible or intangible, for taxes payable to the United States and certificates and all notices affecting such liens, including certificates of redemption, shall be filed as follows:
(1) If the person against whose interest the tax lien applies is a corporation or partnership whose principal executive office is in this state, as these entities are defined in the internal revenue laws of the United States, in the office of the clerk of the superior court of the county in which the principal executive office is located; and
(2) In all other cases, in the office of the clerk of the superior court of the county where the taxpayer resides at the time of the filing of the notice of lien.
Certification by the secretary of the treasury of the United States or his delegate of notices of liens, certificates, or other notices affecting tax liens entitles them to be filed; and no other attestation, certification, or acknowledgment is necessary.
The clerk of superior court shall file, index, and record in the general execution docket or lien book of his or her office a notice of a federal tax lien, refiling of a federal tax lien, notice or revocation of a certificate described in subsections (a) and (b) of Code Section 44-14-571, or certificate of discharge of a federal tax lien in the same manner as provided for in Code Section 9-12-86 for liens upon land.
The fee for filing and indexing each notice of a lien or certificate or notice affecting a tax lien shall be as provided in subsection (f) of Code Section 15-6-77.
A certified copy of a petition, with schedules omitted, commencing a proceeding under the Bankruptcy Reform Act of 1978, P.L. 95-598, codified at 11 U.S.C. Section 101, et seq., or of the decree of adjudication in the proceeding, or of the order approving the bond of the trustee appointed in the proceeding may be filed and recorded in the office of the clerk of the superior court of any county in the same manner as deeds are filed and recorded. It shall be the duty of the clerk to docket and index, under the name of the bankrupt, and record the certified copies of the petition, decree, or order filed for record in the same manner as deeds. Clerks shall be entitled to the same fees for docketing, indexing, and recording the copies of such petitions, decrees, or orders as for docketing, indexing, and recording deeds.
Unless a certified copy of the petition, with schedules omitted, decree, or order has been recorded in any county wherein the bankrupt owns or has an interest in real property, the commencement of a proceeding under the Bankruptcy Reform Act of 1978, P.L. 95-598, codified at 11 U.S.C. Section 101, et seq., shall not be constructive notice to nor shall it affect the title of any subsequent bona fide purchaser or lienor of real property in the county for a present fair equivalent value without actual notice of the pendency of the proceeding; provided, however, that where the purchaser or lienor has given less than fair equivalent value, he or she shall nevertheless have a lien upon the property but only to the extent of the consideration actually given by him or her. The exercise by any court of the United States or of this state of jurisdiction to authorize or effect a judicial sale of real property of the bankrupt within any county in this state shall not be impaired by the pendency of the proceeding unless the copy is recorded in the county, as provided in this Code section, prior to the consummation of the judicial sale.
This part shall be known and may be cited as the “Commercial Real Estate Broker Lien Act.”
As used in this part, the term:
(1) “Broker” means a broker as defined in paragraph (2) of Code Section 43-40-1.
(2) “Client” means a person or entity having an interest in real property that has entered into a written brokerage agreement with a real estate broker relative to such property.
(3) “Commercial real estate” means any real estate other than real estate containing one to four residential units; real estate on which no buildings or structures are located and which is not zoned for nor available for commercial, multifamily, or retail use; or real estate classified as agricultural for tax assessment purposes. Commercial real estate shall not include single-family residential units such as condominiums, townhomes, mobile homes, or homes in a subdivision when sold, leased, or otherwise conveyed on a unit by unit basis even though these units may be part of a larger building or parcel of real estate containing more than four residential units.
(4) “Conveyance” means a sale, lease, or other transfer of commercial real estate.
(5) “Real estate” means real estate as defined in paragraph (9) of Code Section 43-40-1.
(a) Any real estate broker who is not an employee or independent contractor of another real estate broker shall have a lien, in the amount of the compensation agreed upon by and between the broker and the landlord or seller or other client or customer, upon commercial real estate or any interest in commercial real estate:
(1) Arising out of a listing agreement or any other agreement for the management, sale, or lease of or otherwise conveying any interest in the commercial real estate as evidenced by a writing signed by the owner or its expressly authorized agent and with written notice to the party whose property may be liened, if different from the parties to the agreement;
(2) As to which the broker or broker's employees or independent contractors have provided licensed services that result in the procuring of a person or entity ready, willing, and able to enter and who actually enters into a purchase or lease or otherwise accepts a conveyance of the commercial real estate or any interest in the commercial real estate upon terms acceptable to the owner as evidenced by an agreement or conveyance signed by the owner or its expressly authorized agent and with written notice to the party whose property may be liened, if different from the parties to the agreement; or
(3) When a broker having a written agreement with a prospective buyer or tenant to represent the buyer or tenant as to the purchase, lease, or other conveyance of commercial real estate becomes entitled to compensation and with written notice to the party whose property may be liened, if different from the parties to the agreement.
(b) A lien shall attach to the commercial real estate, or any interest in commercial real estate as described in subsection (a) of this Code section, upon the broker's recording a notice of lien in the county land records in the office of the clerk of the superior court in the county in which the real property or interest in the real property is located.
(c) When payment to a broker is due in one lump sum and not paid, the claim for lien must be recorded within 90 days after the tenant takes possession of the leased premises or the transaction procured by the broker is closed.
(d) When payment to a broker is due in installments, all or a portion of which is due only after a conveyance of the commercial real estate, any claim for lien for those payments due after conveyance may be recorded at any time subsequent to the conveyance so long as the claim for lien is recorded within 90 days of the date the payment was due and not paid.
(e) If a broker has a written agreement with a client as provided for in paragraph (3) of subsection (a) of this Code section, then the lien shall attach to the client's interest upon the client's purchasing, leasing, or otherwise accepting a conveyance of the commercial real estate and the recording of a notice of lien by the broker in the county land records, in the office of the clerk of the superior court of the county in which the real property or interest in the real property is located, within 90 days after the later of purchase, lease, or other conveyance or transfer to the buyer or tenant or the failure of the buyer or tenant to compensate the broker or to cause the broker to be compensated pursuant to its agreement.
(f) If a broker has a written management agreement for an improved property, then the claim for lien must be recorded within 90 days of the termination of the agreement.
(g) If a broker claims a lien based upon an option to purchase or lease, the lien must be filed within 90 days of the date the transaction for which a commission or other fee is due or within 90 days of the date the transaction for sale, lease, or other conveyance is closed, whichever is later.
(h) The lien notice shall state the name of the claimant, the name of the owner, a description of the property upon which the lien is being claimed, the amount for which the lien is claimed, and the real estate license number of the broker. The notice of lien shall recite that the information contained in the notice is true and accurate to the knowledge of the signatory. The lien notice shall recite that the broker has disclosed to all parties that a lien might be claimed under this part. The notice of lien shall be signed by the broker or by a person expressly authorized to sign on behalf of the broker and shall be verified.
(i) The broker shall mail a copy of the notice of lien to the owner of the commercial real estate by certified mail or statutory overnight delivery. The broker's lien shall be void and unenforceable if recording does not occur within the time and in the manner required by this Code section.
(j)(1) A broker may bring suit to enforce a lien in the superior court in the county where the property is located by filing a verified complaint and sworn affidavit that the lien has been recorded. Within one year after recording the lien, the broker claiming a lien shall commence proceedings by filing a complaint. Failure to commence proceedings within one year after recording the lien shall extinguish the lien. A broker claiming a lien based upon an option to purchase or lease shall, within six months after the transfer or conveyance of the commercial real estate under the exercise of the option, commence proceedings by filing a complaint. Failure to commence proceedings within this time shall extinguish the lien.
(2) No subsequent notice of lien may be given for the same claim nor may that notice be asserted in any proceedings under this part.
(3) A complaint under this subsection shall contain a brief statement of the contract or agreement on which the lien is founded, the date when the contract or agreement was made, a description of the services performed, the amount due and unpaid, a description of the property that is subject to the lien, and other facts necessary to state a claim for the payment of a commission, fee, or other compensation due the broker. The plaintiff shall make all interested parties, whose interest in the real estate is affected by the action, and of whom the plaintiff is notified or has knowledge, defendants to the action, and shall issue summons and provide service as in other civil actions. Complaint, answer, summons, service, and all other particulars of suit shall be made in accordance with Chapter 11 of Title 9, the “Georgia Civil Practice Act.” All liens claimed under this part shall be foreclosed as provided for in Code Section 44-14-530.
(k) The costs and expenses of all proceedings brought under this part, including reasonable attorney's fees actually incurred, costs, and prejudgment interests due to the prevailing party, shall be borne by the nonprevailing party or parties. When more than one party is responsible for costs, fees, and prejudgment interests, the costs, fees, and prejudgment interests shall be equitably apportioned by the court among those responsible parties.
Prior recorded liens and liens for ad valorem taxes shall have priority over a broker's lien.
Except as otherwise provided in this Code section, whenever a claim for lien has been filed with the clerk of a superior court that would prevent the closing of a transaction or conveyance, an escrow account shall be established from the proceeds from the transaction or conveyance in an amount sufficient to release the claim for lien. The requirement to establish an escrow account, as provided for in this Code section, shall not be cause for any party to refuse to close the transaction. These moneys shall be held in escrow until the parties' rights to the escrowed moneys have been determined by written agreement of the parties, by a court of law, or by any other process which may be agreed to by the parties for resolution of their dispute. Upon the escrow of funds in the amount of the claimed lien, the lien or claim of lien shall be automatically dissolved. Upon the release of the commercial real estate lien by the broker, the broker shall be deemed to have an equitable lien on the escrow funds pending a resolution of the broker's claim and the escrow shall not be released until a resolution is reached and agreed to by all necessary parties or ordered by a court. The parties are not required to follow this escrow procedure if alternative procedures which would allow the transaction to close are available and are acceptable to the transferee in the transaction. If the proceeds from the transaction are insufficient to release all liens claimed against the commercial real estate, including the broker's lien, then the parties are not required to follow the escrow procedure in this Code section.
(a) Whenever a claim for lien has been filed with the superior court and a condition occurs that would preclude the broker from receiving compensation under the terms of the broker's written agreement, the broker shall provide to the owner of record a written release or satisfaction of the lien.
(b) Upon written demand of the owner, lienee, or other authorized agent served on the broker claiming the lien requiring that suit be commenced to enforce the lien or answer be filed in a pending suit, a suit shall be commenced or answer filed in a pending suit, within 90 days thereafter, or the lien shall be extinguished. Service of such demand shall be in the manner required by Chapter 11 of Title 9, the “Georgia Civil Practice Act,” for the service of a summons and complaint.
(c) Whenever a claim for lien has been timely filed with the clerk of the superior court and is paid, or where there is failure to institute a suit to enforce the lien within the time provided by this part, the lien shall be invalid and the broker shall acknowledge satisfaction or release of the lien, in writing, on written demand of the owner within 30 days after payment or expiration of the time in which to perfect the lien. This release of the broker shall not be required to invalidate the lien.
(d) The broker's right to file and record a lien provided for in this part shall be dissolved if the owner, purchaser from owner, lender providing a loan secured by commercial real estate, or other holder of lienable interest in commercial real estate shows that:
(1) The lien has been waived in writing by the lien claimant or its expressly authorized agent; or
(2) The owner or a person at whose instance the brokerage or management services were provided has given a sworn written statement that all such compensation due or to become due has been paid or has been waived in writing by the potential lien claimant; and
(3) At the time the sworn written statement was obtained or given as part of a bona fide sale or a loan secured by the commercial real estate, the lien of record had not been previously canceled, dissolved, or expired.
(a) No action, whether seeking legal or equitable relief or both, as to real property in this state shall operate as a lis pendens as to any such real property involved therein until there shall have been filed in the office of the clerk of the superior court of the county where the real property is located a notice of the institution of the action containing the names of the parties, the time of the institution of the action, the name of the court in which it is pending, a description of the real property involved, and a statement of the relief sought regarding the property, provided that:
(1) The real property is involved in a civil action into which realty is actually and directly brought by the pleadings in a pending suit and in which relief is sought regarding that particular property; and
(2) Any person with a claim of a legal or equitable interest in such real property shall have the right to intervene and file a motion to object in the civil action to the filing of the lis pendens, and, if so filed, the court shall review and make a determination within 60 days of such filing, unless otherwise extended by the court, as to whether:
(A) The filing of the lis pendens meets the requirements of this paragraph. If the court finds that such filing does not meet the requirements of this paragraph, the court shall enter an order canceling the lis pendens; and
(B) The filer of the lis pendens shall be required to pay or post into the court's registry a bond in an amount to be determined by the court.
(b) During the pendency of the civil action, the court may enter an order canceling the lis pendens, on the court's own motion or on the motion of a party to the underlying action, upon a showing that the real property is no longer involved in the pending action.
The clerks of the superior courts of this state shall record all notices of lis pendens on real property filed with them and shall be allowed a fee, as required by subparagraph (f)(1)(A) of Code Section 15-6-77, for recording the lis pendens in the lis pendens docket.
Upon the dismissal of any action or cancellation pursuant to subsection (a) of Code Section 44-14-610 or when a settlement or final judgment is entered therein, or upon order of the court, the party initiating the filing of a lis pendens shall file a release of the lis pendens with the clerk of the superior court of each county where the lis pendens was recorded.
(a) This article shall in no way affect or alter the laws of this state with respect to personal property.
(b) This article shall in no way affect or alter the laws of this state with respect to judgments, executions, and attachments; the liens they create; their enforceability; the recording of executions in general execution dockets; the notice given by the recording; or otherwise.
This chapter shall be known and may be cited as the “Uniform Prudent Management of Institutional Funds Act.”
As used in this chapter, the term:
(1) “Charitable purpose” means the relief of poverty, the advancement of education or religion, the promotion of health, the promotion of a governmental purpose, or any other purpose the achievement of which is beneficial to the community.
(2) “Endowment fund” means an institutional fund, or any part thereof, that, under the terms of a gift instrument, is not wholly expendable by the institution on a current basis. The term shall not include assets that an institution designates as an endowment fund for its own use.
(3) “Gift instrument” means a record or records, including an institutional solicitation, under which property is granted to, transferred to, or held by an institution as an institutional fund.
(4) “Institution” means:
(A) A person, other than an individual, organized and operated exclusively for charitable purposes;
(B) A government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose; and
(C) A trust that had both charitable and noncharitable interests, after all noncharitable interests have terminated.
(5) “Institutional fund” means a fund held by an institution exclusively for charitable purposes. The term shall not include:
(A) Program related assets;
(B) A fund held for an institution by a trustee that is not an institution; or
(C) A fund in which a beneficiary who is not an institution has an interest, other than an interest that could arise upon violation or failure of the purposes of the fund.
(6) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(7) “Program related asset” means an asset held by an institution primarily to accomplish a charitable purpose of the institution and not primarily for investment.
(8) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(a) Subject to the intent of a donor expressed in a gift instrument or any express written agreement between the donor and the institution, an institution, in managing and investing an institutional fund, shall consider the charitable purposes of the institution and the purposes of the institutional fund.
(b) In addition to complying with the duty of loyalty imposed by law other than this chapter, each person responsible for managing and investing an institutional fund shall manage and invest such fund in good faith and with the care an ordinarily prudent person in a like position would exercise under similar circumstances, considering the purposes, terms, distribution requirements, and other circumstances of the institutional fund.
(c) In managing and investing an institutional fund, an institution:
(1) May incur only costs that are appropriate and reasonable in relation to the assets, the purposes of the institution and the institutional fund, and the skills reasonably available to the institution; and
(2) Shall make a reasonable effort to verify facts relevant to the management and investment of such fund.
(d) An institution may pool two or more institutional funds for purposes of management and investment.
(e) Except as otherwise provided by a gift instrument, the following rules apply:
(1) In managing and investing an institutional fund, the following factors, if relevant, shall be considered:
(A) General economic conditions;
(B) The possible effect of inflation or deflation;
(C) The expected tax consequences, if any, of investment decisions or strategies;
(D) The role that each investment or course of action plays within the overall investment portfolio of such fund;
(E) The expected total return from income and the appreciation of investments;
(F) Other resources of the institution;
(G) The needs of the institution and such fund to make distributions and to preserve capital; and
(H) An asset's special relationship or special value, if any, to the charitable purposes of the institution or to the donor;
(2) Management and investment decisions about an individual asset shall not be made in isolation but rather in the context of the institutional fund's portfolio of investments as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the institutional fund and to the institution;
(3) An institution may invest in any kind of property or type of investment consistent with this Code section;
(4) An institution shall reasonably manage the risk of concentrated holdings of assets by diversifying the investments of the institutional fund or by using some other appropriate mechanism, except as provided in this paragraph, as follows:
(A) The duty imposed by this paragraph shall not apply if the institution reasonably determines that, because of special circumstances, or because of the specific purposes, terms, distribution requirements, and other circumstances of the institutional fund, the purposes of such fund are better served without complying with the duty. For purposes of this paragraph, special circumstances shall include an asset's special relationship or special value, if any, to the charitable purposes of the institution or to the donor;
(B) No person responsible for managing and investing an institutional fund shall be liable for failing to comply with the duty imposed by this paragraph to the extent that the terms of the gift instrument or express written agreement between the donor and the institution limits or waives the duty; and
(C) The governing board of an institution may retain property contributed by a donor to an institutional fund for as long as the governing board deems advisable;
(5) Within a reasonable time after receiving property, an institution shall make and carry out decisions concerning the retention or disposition of the property or to the rebalancing of a portfolio, in order to bring the institutional fund into compliance with the purposes, terms, and distribution requirements of the institution or the institutional fund as necessary to meet other circumstances of the institution or the institutional fund and the requirements of this chapter; and
(6) A person that has special skills or expertise, or is selected in reliance upon the person's representation that such person has special skills or expertise, has a duty to use those skills or expertise in managing and investing institutional funds.
(a) Subject to the intent of a donor expressed in the gift instrument or to any express written agreement between a donor and an institution, an institution may appropriate for expenditure or accumulate assets of an endowment fund as the institution determines shall be prudent for the uses, benefits, purposes, and duration for which the endowment fund is established. Unless stated otherwise in the gift instrument, the assets in an endowment fund shall be donor restricted assets until appropriated for expenditure by the institution. In making a determination to appropriate or accumulate assets, the institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, and shall consider, if relevant, the following factors:
(1) The duration and preservation of the endowment fund;
(2) The purposes of the institution and the endowment fund;
(3) General economic conditions;
(4) The possible effect of inflation or deflation;
(5) The expected total return from income and the appreciation of investments;
(6) Other resources of the institution; and
(7) The investment policy of the institution.
(b) To limit the authority to appropriate assets for expenditure or accumulation under subsection (a) of this Code section, a gift instrument shall specifically state the limitation.
(c) Terms in a gift instrument designating a gift as an endowment, or a direction or authorization in the gift instrument to use only income, interest, dividends, or rents, issues, or profits, or to preserve the principal intact, or other words of similar meaning shall:
(1) Create an endowment fund of permanent duration, unless otherwise provided by the gift instrument for limiting the duration of such fund; and
(2) Not otherwise limit the authority to appropriate assets for expenditure or accumulation under subsection (a) of this Code section.
(a) Subject to any specific limitation set forth in a gift instrument or in law other than this chapter, an institution may delegate to an external agent the management and investment of an institutional fund to the extent that an institution could prudently delegate under the circumstances. An institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, in:
(1) Selecting an agent;
(2) Establishing the scope and terms of the delegation, consistent with the purposes of the institution and the institutional fund; and
(3) Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the scope and terms of the delegation.
(b) In performing a delegated function, an agent owes a duty to the institution to exercise reasonable care to comply with the scope and terms of the delegation.
(c) An institution that complies with subsection (a) of this Code section shall not be liable for the decisions or actions of an agent for the performance of a delegated function.
(d) By accepting the delegation of a management or investment function from an institution that is subject to the laws of this state, an agent submits to the jurisdiction of the courts of this state in all proceedings arising from or related to the delegation or the performance of the delegated function.
(e) An institution may delegate management and investment functions to its committees, officers, or employees as otherwise authorized by law.
(a) If the donor or a donor's designee consents in a record, an institution may release or modify, in whole or in part, a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund. A release or modification may not allow an institutional fund to be used for a purpose other than a charitable purpose of the institution.
(b) The court, upon application of an institution, may modify a restriction contained in a gift instrument regarding the management or investment of an institutional fund if the restriction has become impracticable or wasteful, if it impairs the management or investment of such fund, or if, because of circumstances not anticipated by the donor, a modification of a restriction will further the purposes of such fund. The institution shall notify the Attorney General of the application, and the Attorney General shall be given an opportunity to be heard. To the extent practicable, any modification shall be made in accordance with the donor's probable intention.
(c) If a particular charitable purpose or a restriction contained in a gift instrument on the use of an institutional fund becomes unlawful, impracticable, impossible to achieve, or wasteful, the court, upon application of an institution, may modify the purpose of such fund or the restriction on the use of such fund in a manner consistent with the charitable purposes expressed in the gift instrument. The institution shall notify the Attorney General of the application, and the Attorney General shall be given an opportunity to be heard.
(d) If an institution determines that a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund is unlawful, impracticable, impossible to achieve, or wasteful, the institution, 60 days after notification to the Attorney General, may release or modify the restriction, in whole or part, if:
(1) The institutional fund subject to the restriction has a total value of less than $100,000.00;
(2) More than 20 years have elapsed since the institutional fund was established; and
(3) The institution uses the property in a manner consistent with the charitable purposes expressed in the gift instrument.
Compliance with this chapter shall be determined in light of the facts and circumstances existing at the time a decision is made or action is taken, and not by hindsight. This chapter applies to institutional funds existing on or established after July 1, 2008. As applied to institutional funds existing on July 1, 2008, this chapter governs only decisions made or actions taken on or after that date. This chapter shall not authorize electronic delivery of any legally required notice.
In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
This chapter may be known as and may be cited as the “Uniform Environmental Covenants Act.”
As used in this chapter, the term:
(1) “Activity and use limitations” means restrictions or obligations created under this chapter with respect to real property.
(2) “Agency” means the Environmental Protection Division of the Department of Natural Resources or any federal agency that determines or approves the environmental response project pursuant to which the environmental covenant is created.
(3) “Common interest community” means a condominium, cooperative, or other real property with respect to which a person, by virtue of the person's ownership of a parcel of real property, is obligated to pay property taxes or insurance premiums, or for maintenance, or improvement of other real property described in a recorded covenant that creates the common interest community.
(4) “Environmental covenant” means a servitude arising under an environmental response project that imposes activity and use limitations.
(5) “Environmental response project” means a plan or work performed for environmental remediation of real property and conducted:
(A) Under a federal or state program governing environmental remediation of real property;
(B) Incident to closure of a solid or hazardous waste management unit, if the closure is conducted with approval of an agency; or
(C) Under a state voluntary clean-up program.
(6) “Holder” means the grantee of an environmental covenant as specified in subsection (a) of Code Section 44-16-3.
(7) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, political subdivision, agency, or instrumentality, or any other legal or commercial entity.
(8) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(a) Any person, including a person that owns an interest in the real property, the agency, or a municipality, county, consolidated government, or other unit of local government, may be a holder. An environmental covenant may identify more than one holder. The interest of a holder shall be an interest in real property.
(b) A right of an agency under this chapter or under an environmental covenant, other than a right as a holder, shall not be considered an interest in real property.
(c) An agency shall be bound by any obligation it assumes in an environmental covenant, but an agency shall not assume obligations merely by signing an environmental covenant. Any other person that signs an environmental covenant shall be bound by the obligations the person assumes in the covenant, but signing the covenant shall not change obligations, rights, or protections granted or imposed under law.
(d) The following rules apply to interests in real property in existence at the time an environmental covenant is created or amended:
(1) An interest that has priority under other law shall not be affected by an environmental covenant unless the person that owns the interest subordinates that interest to the covenant;
(2) The provisions of this chapter shall not require a person that owns a prior interest to subordinate that interest to an environmental covenant or to agree to be bound by the covenant;
(3) A subordination agreement may be contained in an environmental covenant covering real property or in a separate record. If the environmental covenant covers commonly owned property in a common interest community, the record may be signed by any person authorized by the governing board of the owners' association; and
(4) An agreement by a person to subordinate a prior interest to an environmental covenant affects the priority of that person's interest but shall not by itself impose any affirmative obligation on the person with respect to the environmental covenant.
(a) An environmental covenant shall:
(1) State that the instrument is an environmental covenant executed pursuant to this chapter;
(2) Contain a legally sufficient description of the real property subject to the covenant and the name of the owner of the fee simple of the real property subject to such covenant at the time such covenant is executed;
(3) Describe the activity and use limitations on the real property;
(4) Identify every holder;
(5) Be signed by the agency, every holder, and, unless waived by the agency, every owner of the fee simple of the real property subject to such covenant; and
(6) Identify the name and location of any administrative record for the environmental response project reflected in the environmental covenant.
(b) In addition to the information required by subsection (a) of this Code section, an environmental covenant may contain other information, restrictions, and requirements agreed to by the persons who signed it, including any:
(1) Requirements for notice following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits for, or proposals for any site work affecting the contamination on, the property subject to the covenant;
(2) Requirements for periodic reporting describing compliance with the covenant;
(3) Rights of access to the property granted in connection with implementation or enforcement of the covenant;
(4) A brief narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure, and the location and extent of the contamination;
(5) Limitation on amendment or termination of the covenant in addition to those contained in Code Sections 44-16-9 and 44-16-10; and
(6) Rights of the holder in addition to the right to enforce the covenant pursuant to Code Section 44-16-11.
(c) In addition to other conditions for its approval of an environmental covenant, the agency may require those persons specified by the agency who have interests in the real property to sign the covenant.
(d) The agency shall not sign the environmental covenant without confirming that the people or entities listed in paragraphs (1) through (6) of subsection (a) of Code Section 44-16-7 have been served with a copy of the proposed final text of the environmental covenant at least 30 days prior to the agency signing such covenant.
(a) An environmental covenant that complies with this chapter runs with the land.
(b) An environmental covenant that is otherwise effective shall be valid and enforceable even if:
(1) It is not appurtenant to an interest in real property;
(2) It can be or has been assigned to a person other than the original holder;
(3) It is not of a character that has been recognized traditionally at common law;
(4) It imposes a negative burden;
(5) It imposes an affirmative obligation on a person having an interest in the real property or on the holder;
(6) The benefit or burden does not touch or concern real property;
(7) There is no privity of estate or contract;
(8) The holder dies, ceases to exist, resigns, or is replaced; or
(9) The owner of an interest subject to the environmental covenant and the holder are the same person.
(c) An instrument that creates restrictions or obligations with respect to real property that would qualify as activity and use limitations except for the fact that the instrument was recorded before July 1, 2008, shall not be invalid or unenforceable because of any of the limitations on enforcement of interests described in subsection (b) of this Code section or because it was identified as an easement, servitude, deed restriction, or other interest. This chapter shall not apply in any other respect to such an instrument.
(d) This chapter shall not invalidate or render unenforceable any interest, whether designated as an environmental covenant or other interest, that is otherwise enforceable under the law of this state.
This chapter shall not authorize a use of real property that is otherwise prohibited by zoning, by ordinance, by local law, by general law, or by a recorded instrument that has priority over the environmental covenant. An environmental covenant may prohibit or restrict uses of real property which are otherwise authorized by zoning, by ordinance, by local law, or by general law.
(a) A copy of an environmental covenant shall be provided in the manner required by the agency and shall establish proof of service to:
(1) Each person that signed the covenant;
(2) Each person holding a recorded interest in the real property subject to the covenant;
(3) Each person in possession of the real property subject to the covenant;
(4) Each municipality, county, consolidated government, or other unit of local government in which real property subject to the covenant is located;
(5) Each owner in fee simple whose property abuts the property subject to the environmental covenant; and
(6) Any other person the agency requires.
(b) The validity of an environmental covenant shall not be affected by failure to provide a copy of the covenant as required under this Code section.
(a) An environmental covenant and any amendment or termination of the covenant shall be recorded in every county in which any portion of the real property subject to the covenant is located. For purposes of indexing, a holder shall be treated as a grantee.
(b) Except as otherwise provided in subsection (c) of Code Section 44-16-9, an environmental covenant shall be subject to the laws of this state governing recording and priority of interests in real property.
(a) An environmental covenant shall be perpetual, which shall be stated in such covenant, unless it is:
(1) By its terms limited to a specific duration or terminated by the occurrence of a specific event;
(2) Terminated by consent pursuant to Code Section 44-16-10;
(3) Terminated pursuant to subsection (b) of this Code section;
(4) Terminated by foreclosure of an interest that has priority over the environmental covenant; or
(5) Terminated or modified in an eminent domain proceeding, but only if:
(A) The agency that signed the covenant is a party to the proceeding;
(B) All persons identified in subsections (a) and (b) of Code Section 44-16-10 are given notice of the pendency of the proceeding; and
(C) The court determines, after hearing, that the termination or modification will not adversely affect human health or the environment.
(b) If the agency that signed an environmental covenant has determined that the intended benefits of the covenant can no longer be realized, a court, under the doctrine of changed circumstances, in an action in which all persons identified in subsections (a) and (b) of Code Section 44-16-10 have been given notice, may terminate the covenant or reduce its burden on the real property subject to the covenant. The agency's determination or its failure to make a determination upon request of the current owner of the fee simple of the real property or by any affected member of the public shall be subject to review pursuant to Article 1 of Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(c) Except as otherwise provided in subsections (a) and (b) of this Code section, an environmental covenant may not be extinguished, limited, or impaired through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, or acquiescence, or a similar doctrine.
(d) An environmental covenant may not be extinguished, limited, or impaired by application of Code Sections 44-5-60 and 44-5-168.
(a) An environmental covenant may be amended or terminated by consent only if the amendment or termination is signed by:
(1) The agency;
(2) The current owner of the fee simple of the real property subject to the covenant;
(3) Each person that originally signed the covenant, unless the person waived in a signed record the right to consent or a court finds that the person no longer exists or cannot be located or identified with the exercise of reasonable diligence; and
(4) Except as otherwise provided in paragraph (2) of subsection (d) of this Code section, the holder.
(b) If an interest in real property is subject to an environmental covenant, the interest shall not be affected by an amendment of the covenant unless the current owner of the interest consents to the amendment or has waived in a signed record the right to consent to amendments.
(c) Except for an assignment undertaken pursuant to a governmental reorganization, assignment of an environmental covenant to a new holder shall be an amendment.
(d) Except as otherwise provided in an environmental covenant:
(1) A holder may not assign its interest without consent of the other parties; and
(2) A holder may be removed and replaced by agreement of the other parties specified in subsection (a) of this Code section.
(e) A court of competent jurisdiction may fill a vacancy in the position of holder.
(a) A civil action for injunctive or other equitable relief for violation of an environmental covenant may be maintained by:
(1) A party to the covenant;
(2) The agency;
(3) Any person to whom the covenant expressly grants power to enforce;
(4) Any owner in fee simple whose property abuts the property subject to the environmental covenant, if harm occurs or is reasonably likely to occur;
(5) A person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the covenant; or
(6) A municipality, county, consolidated government, or other unit of local government in which the real property subject to the covenant is located.
(b) This chapter shall not limit the regulatory authority of the agency under law other than with respect to an environmental response project.
(c) A person shall not be responsible for or subject to liability for environmental remediation solely because such person has the right to enforce an environmental covenant.
The agency may establish and maintain a registry that contains all environmental covenants and any amendment or termination of such covenants. The registry may also contain any other information concerning environmental covenants and the real property subject to them which the agency considers appropriate. The registry, if established, shall be a public record for purposes of Article 4 of Chapter 18 of Title 50.
The agency may establish rules and regulations for implementing this chapter and may provide for fees for utilizing this chapter.
This chapter modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7001 et seq.) but shall not modify, limit, or supersede Section 101 of such Act (15 U.S.C. Section 7001(a)) or authorize electronic delivery of any of the notices described in Section 103 of such Act (15 U.S.C. Section 7003(b)).
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