Real Property
Linda S. Finley
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This Article looks at notable issues regarding Georgia real property law during the survey period, including legislation enacted by the Georgia General Assembly and case law decided in Georgia courts. The Author is happy to report she no longer feels compelled to begin the Survey by discussing the dire economic conditions of the state of Georgia or, indeed, the United States as a whole. At the time of the writing of this Survey, RealtyTrac, which reports national foreclosure statistics, released its mid-year 2016 foreclosure report showing that foreclosure activity affecting Georgia real property in the month of July 2016 was 15% lower than the previous month and 44% lower than the same period the previous year. Disturbing, however, was the economic statistic reporting that Georgia home sales for June 2016 were down 33% from the previous month and 25% from the same period in 2015.1 Only time will tell exactly what these contradictory trends indicate, but, in the meantime, whether the economy is improving or declining, this Survey attempts to provide the practitioner, student, or lay person with a brief outline of what has occurred in this area of the law during the last twelve months.
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The 2016 Regular Session of the 153rd Georgia General Assembly convened on January 11, 2016, and adjourned sine die on March 24, 2016.2 During the session, foreclosure no longer appeared to be at the forefront of the bills brought to committee or considered on the floor. There was no legislation signed by the governor that directly amended the Real Property Code,3 but legislation was enacted pertaining to other areas of the law, and that legislation directly affects the practice of real property law.
Senate Bill 290,4 although a revision to the Insurance Code5 rather than a change to specific real property law provisions, is germane to any attorney who handles the collection of title insurance premiums, advises clients as to title insurance, or adjusts title insurance losses. The Georgia Department of Insurance (the Insurance Department) had traditionally not required Georgia attorneys to be licensed as insurance agents even though closing attorneys, by nature of their role in closing a sale of real property, advise clients and others about title insurance and regularly collect insurance premiums during the closing. The Insurance Department issued an opinion letter in April 2000 exempting attorneys from licensing requirements based on the exclusions found in the definition for "attorney" at Official Code of Georgia Annotated ( O.C.G.A.) section 33-23-1(b)(1).6 The need for legislation arose because, in wake of the creation of regulations by the Federal Consumer Financial Protection Bureau,7 the Insurance Department advised several mortgage lenders that Georgia did, in fact, require attorneys to be licensed under Georgia law in order to issue title policies.8
Senate Bill 290 was enacted to address the Insurance Department's change of position by revising O.C.G.A. § 33-23-49 to include Georgia attorneys in the statute's list of exempted persons. The amendment uses the definition within O.C.G.A § 33-23-1(b)(1): "An attorney at law
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admitted to practice in this state, when handling the collections of premiums or advising clients as to insurance as a function incidental to the practice of law or who adjusts losses which are incidental to the practice of his or her profession" is not included within the definition of "agent, subagent, [or] counselor."10 The end result is that O.C.G.A. § 33-23-4(h)(2)(B)11 expressly exempts attorneys from the requirement that they become licensed insurance agents.12
In a further step toward revising Georgia law to reflect the digital age and providing instruction on how digital images, traditional documents, and images of instruments are to be properly certified for recording with the clerk of court, H.R. Bill 100413 amended Title 15 of the Georgia Code14 to provide standardized directions and requirements.
The amendment provides that, in order for maps, plats, or condominium plans to be recordable, the document must now conform to specific requirements. The document to be recorded must include a caption containing the following: the county, city, town, municipality, or village where the property lies; the names of all owners of the property; the type of document being recorded, such as whether the image is a subdivision or condominium plat, condominium site plan, condominium plot plan, or condominium floor plan; the name of the subdivision, if any; the name of the condominium, if the document concerns a condominium; identification of any applicable units, pods, blocks, lots, or other designation of the subdivision or condominium; the identity of the developers; all land districts and land lots reflected on the map, plat, or plan; the date of preparation or revision date; the identity, license or registration number, and contact information of the land surveyor.15 Furthermore, the image's pages must be numbered if it contains multiple pages.16
The amendment also requires that each document provide a "surveyor certification box" containing the surveyor's certification of whether the map, plat, or plan has been approved by the applicable municipal, county, or other governing body, and, if no approval is required, that the applicable body has affirmed, in writing, that no approval is required, including the name and date of approval or waiver of the approval.17 Lest
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a surveyor wants to cut corners, the amendment creates a crime punishable as a misdemeanor18 if a surveyor makes a fraudulent certification.19 Also required is a "filing information box" of not less than three square inches, in the upper left-hand corner, which shall be reserved for the clerk to append filing information.20 Any image of maps, plats, or plans must comply with the minimum standards purveyed in the regulations of the State Board of Registration for Professional Engineers and Land Surveyors.21 It must be an electronic image of a single page, certified and presented to the clerk electronically in conformance with the rules of the Georgia Superior Court Clerks' Cooperative Authority.22
House Bill 5123 amended O.C.G.A. § 48-4-40,24 adding sums to be paid to redeem property after it has been foreclosed by taxing authorities for unpaid ad valorem taxes. In the past, purchasers at tax foreclosure sales and those parties redeeming the property from sale were often at odds as to how to calculate the total sum to be paid to redeem property, as the statute was silent about whether charges other than the taxes and penalties paid at the sale, taxes paid after the sale of the property, plus a statutory premium were required to effect redemption by the proper party.25 The amendment provides for additional sums to be paid to properly redeem real property from a tax sale, and it directs payment of property owners or condominium association fees or assessments paid by the tax deed purchaser after purchase of the property at the tax sale.26 The amendment curtails any argument about what is required to properly redeem property and protects those who purchase such properties from unexpected and unfair loss.
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While the Georgia appellate courts issued several decisions concerning eminent domain, the decisions largely clarified existing law concerning the right to take property, petitions to set aside the taking, and awards for attorney fees and costs of litigation. Three cases of note concern issues related to the duty to pay just and adequate compensation for a temporary taking, the right to bring a condemnation action even if a contractual dispute is pending for the same subject matter, and the right of entry.
In Fincher Road Investments, LLLP v. City of Canton,28 the City of Canton (the City) filed a petition for condemnation and deposited its initial estimate of compensation in the amount of $787,400. Claiming the taking was improper for a number of reasons, Fincher Road Investments, LLLP (Fincher) filed a petition to set aside the declaration of taking. The petition was initially dismissed because Fincher failed to give the City notice of the hearing fifteen days before it commenced, as required by statute. In an earlier appeal, the Georgia Court of Appeals determined the trial court had the discretion to hear a petition to set aside, even though the rule nisi for the hearing on the merits of that petition was not served on the City a full fifteen days before the hearing.29
On the day the remittitur was issued for the earlier interlocutory appeal, the City filed a motion to dismiss the taking. Therein, the City claimed that Fincher's property was no longer necessary for public use. The City also filed a dismissal, relinquished all rights to the property, and asked that the clerk completely refund its deposit of just and adequate compensation. Fincher filed a motion in opposition, asserting entitlement to compensation for the loss of the property while the City's taking was effective. Fincher also sought attorney fees and costs of litigation. The trial court granted Fincher's motion for fees and costs, but denied its request for compensation related to the temporary taking. A second petition for interlocutory appeal resulted in this decision.30
Citing the Takings Clause of the Fifth Amendment to the United States Constitution,31 the Georgia Court of Appeals reversed the decision
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of the trial court and held that Fincher was entitled to compensation for the temporary taking of property.32 The court of appeals cited precedent of the Supreme Court of the United States to explain that "'the government may elect to abandon its intrusion' . . . [however], even such temporary takings are not 'different in kind from permanent takings, for which the...
