Real Property - Linda S. Finley

• Jurisdiction: United States,Federal,Georgia
• Citation: Vol. 62 No. 1
• Publication year: 2010
• topic: Real Estate

Real Property

by Linda S. Finley*

I. Introduction

The months since the last survey period from June 1, 2009 to May 31, 2010,¹ have continued to prove perilous to the nation as well as to the State of Georgia, as real estate values have plummeted and foreclosure of real property has reached an all time high.² However, as this Article attempts to show, other issues concerning real property abound. As is the case each year, it is difficult to choose the few cases that may be surveyed from the numerous decisions affecting real property law. The cases in this Article were selected either for their legal significance, to update practicing attorneys, or in some cases to recognize trends.

II. Legislation

The Speaker's and Lieutenant Governor's gavels struck the block just before midnight on Thursday, April 29, 2010, signifying the end of the

* Shareholder in the law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Atlanta, Georgia. Mercer University (B.A., 1978); Mercer University, Walter F. George School of Law (J.D., 1981). Member State and Federal Bars of Georgia and Florida, the United States Court of Appeals for the Eleventh Circuit, and the United States Supreme Court.

The Author wishes to give special thanks to Kitty Davis, who year after year has typed and reviewed this Article. Additional thanks go to Lauren Coleman (University of Georgia School of Law, J.D. candidate, 2012) who identified every real property case decided during the survey period; Robert A. "Andy" Weathers, Esq. (Mercer University, Walter F. George School of Law, J.D., 1966) whose constant guidance is reflected in the Article; and Carol V. Clark, Esq., for her assistance, research, and analysis of real property law. Particularly, the Author directs the reader to Carol V. Clark, 2010 Judicial Update, in Real Property Law Institute Materials (Institute of Continuing Legal Education in Georgia 2010).

1. For analysis of Georgia real property law during the prior survey period, see Linda S. Finley, Real Property, Annual Survey of Georgia Law, 61 Mercer L. Rev. 301 (2009).

2. Jon Prior, Foreclosure Filings Hit New Record in 2009: RealtyTrac, Housing Wire (Jan. 14, 2010, 12:03 a.m.), http://www.housingwire.com/2010/01/14/foreclosure-filings-climb-another-21-in-2009-realtytrac.

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longest legislative session in Georgia history. The 2010 legislature reached an agreement on a state budget, a much-touted transportation bill that some say could ultimately produce private solutions to Atlanta's traffic gridlock, and an education budget reform bill.³ Included in the myriad of legislation were several bills affecting Georgia real property.

Georgia House Bills 1191⁴ and 1192⁵ each concern the allocation of certain fees accrued in multijurisdictional real estate transactions. House Bill 1191 amends section 48-6-69 of the Official Code of Georgia Annotated (O.C.G.A.),⁶ which relates to "recording, payment, and certification where encumbered real property is located in more than one county or is located within and outside the state."⁷ Specifically, the amendment provides a method to prorate recording fees in transactions involving property that lies in several counties or across state lines.⁸ The formula used to determine the proration is "calculated by applying the ratio of the value of the real property in such county as it bears to the total value of the real properties in all counties described in the instrument to the total tax due."⁹ The value of the property used in the formula is "calculated pursuant to the most recently determined fair market valuations of the property as determined by the county board of tax assessors or comparable assessing entity in any affected state."¹⁰

Likewise, House Bill 1192 relates to payment of real estate transfer tax in multijurisdictional transactions.¹¹ Like the amendments to O.C.G.A. § 48-6-69, this bill provides how tax due on the transaction is divided among the various counties or states where the property lies.¹² The bill amended O.C.G.A. § 48-6-4¹³ to provide that the tax to be paid

shall be prorated among all applicable counties and the amount paid to the clerk or his or her deputy of the county in which the deed, instrument, or other writing is recorded shall be that proportion of the total tax due calculated by applying the ratio of the value of the real

3. Enzo Pastore, Session Roundup: Georgia, Progressive States Network (June 3, 2010, 11:14 a.m.), http://www.progressivestates.org/node/25188.

4. Ga. H.R. Bill 1191, Reg. Sess., 2010 Ga. Laws 528 (codified at O.C.G.A. § 48-6-69(a)

(2010)).

5. Ga. H.R. Bill 1192, Reg. Sess., 2010 Ga. Laws 526 (codified at O.C.G.A. § 48-6-4(e)

(2010)).

6. O.C.G.A. § 48-6-69 (2010).

7. Ga. H.R. Bill 1191, 2010 Ga. Laws 528.

8. Id. at § 1, 2010 Ga. Laws at 528.

9. Id.

10. Id.

11. Ga. H.R. Bill 1192, 2010 Ga. Laws 526.

12. Id. at § 1, 2010 Ga. Laws at 528.

13. O.C.G.A. § 48-6-4 (2010).

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property in such county as it bears to the total value of the real properties in all counties described in the deed, instrument, or other writing to the total tax due.¹⁴

The amendments to O.C.G.A. § 48-6-4 also use the county tax assessor's valuation of the property to determine the proportional amount of

payment.¹⁵

Georgia Senate Bill 371¹⁶ revised certain provisions of the Georgia Residential Mortgage Fraud Act¹⁷ and other provisions of the O.C.G.A. to provide the Georgia Bureau ofInvestigation (GBI) with the authority to investigate certain offenses involving fraudulent real estate transactions and to give the GBI subpoena power for such investigations.¹⁸ Specifically, the bill amends O.C.G.A. §§ 16-8-104¹⁹ and 35-3-4,²⁰ each of which relates to the power of the GBI.²¹ The bill also added O.C.G.-A. § 35-3-4.2,²² which authorizes the GBI, with the consent of the Georgia Attorney General, to issue a subpoena and to compel the production of documents and computer records.²³ Should a party fail to comply with the subpoena, "the director, assistant director, or the deputy director for investigations, through the Attorney General or district attorney, may apply to a superior court . . . for an order compelling compliance."²⁴

III. Title to Real Property

In Simmons v. Community Renewal & Redemption, LLC,²²⁵ the Georgia Supreme Court analyzed how title vests by adverse possession, either by expiration of a period oftwenty years or by seven years under color of title.²⁶ Further, the supreme court analyzed the term "claim of right" as used in the context of a claim to property and held that the

14. Ga. H.R. Bill 1192 at § 1, 2010 Ga. Laws at 527.

15. Id. at § 1, 2010 Ga. Laws at 527.

16. Ga. S. Bill 371, Reg. Sess., 2010 Ga. Laws 1162 (codified at O.C.G.A. §§ 16-8-104, 35-3-4, -4.2 (Supp. 2010)).

17. O.C.G.A. §§ 16-8-100 to -106 (2007 & Supp. 2010).

18. Ga. S. Bill 371 at §§ 1-2, 2010 Ga. Laws at 1162.

19. O.C.G.A. § 16-8-104 (2007 & Supp. 2010).

20. O.C.G.A. § 35-3-4 (2006 & Supp. 2010).

21. Ga. S. Bill 371 at §§ 1-2, 2010 Ga. Laws at 1162.

22. O.C.G.A. § 35-3-4.2 (Supp. 2010).

23. Ga. S. Bill 371 at § 3, 2010 Ga. Laws at 1163.

24. Id.

25. 286 Ga. 6, 685 S.E.2d 75 (2009).

26. Id. at 6, 685 S.E.2d at 77 (quoting Cooley v. McRae, 275 Ga. 435, 436, 569 S.E.2d 845, 846 (2002)); see O.C.G.A. § 44-5-164 (2010).

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term "is synonymous with 'claim of title' and 'claim of ownership.'"²⁷ In this matter, Simmons claimed that he owned property based on his use of it for over twenty years. The problem with Simmons's claim was that he knew title to the claimed property was vested in Mike Marable. Nevertheless, Simmons claimed that his use was hostile to Marable's and consistent with the requirement ofthe adverse possession statute.²⁸ The supreme court held that

[n]o prescription runs in favor of one who took possession of land knowing that it did not belong to him. Rather, one must enter upon the land claiming in good faith the right to do so. To enter upon the land without any honest claim of right to do so is but a trespass and can never ripen into prescriptive title.²⁹

In other words, Simmons was nothing more than a trespasser, and his title could "never ripen into prescriptive title by adverse possession."³⁰ In Mann v. Blalock,³¹ the supreme court determined that a prior petition to quiet title under O.C.G.A. §§ 23-3-60 to -69³² was so deficient that the order from that 2004 action quieting title could be voided several years later.³³ In 2004 Mann filed a quiet title action, which resulted in an order vesting him, as executor of an estate, with fee simple title to land. The property later sold for unpaid taxes, and in 2007 the purchaser of the tax deed, Blalock, sought to remove clouds upon the title, including the order from the 2004 quiet title action. The matter was heard before a special master who determined that as a matter of law, Mann's 2004 petition to quiet title was deficient. Relying on the special master's findings and recommendations, the Superior Court ofLamar County, Georgia, entered judgment for Blalock, granting him fee simple title to the land and clearing all clouds from the title.³⁴ The special master found in the 2007 hearing

that the 2004 quiet title proceeding was procedurally deficient as a matter of law because the petition was not verified as required by [O.C.G.A.] § 23-3-62(b); it did not include a plat of survey of the land as required by [O.C.G.A.] § 23-3-62(c); a lis pendens was not filed

27. Simmons, 286 Ga. at 6, 685 S.E.2d at 77.

28. Id. at 6-7, 685 S.E.2d at 77.

29. Id. at 7, 685 S.E.2d at 77 (citations omitted) (quoting Ellis v. Dasher, 101 Ga. 5, 9, 29 S.E.2d 268, 270 (1897); Halpern v. Lacy Inv. Corp., 259 Ga. 264, 265, 379 S.E.2d 519, 521 (1989)) (internal quotation marks omitted).

30. Id.

31. 286 Ga. 541, 690 S.E.2d 375 (2010).

32. O.C.G.A. §§ 23-3-60 to -69 (1982).

33. See Mann, 286 Ga. at 543, 690 S.E.2d at 376-77.

34. Id. at 541-42, 690 S.E.2d at 376.

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