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RECORDING ACT

GA has a race notice recording act that provides that a prior unrecorded deed loses priority to a subsequent recorded deed from the same vendor so long as the subsequent purchaser takes w/o notice of the prior deed.

GOOD FAITH PURCHASER

Under GA law, an unrecorded deed or conveyance of land is void as against subsequent purchasers for value w/o notice of the deed or conveyance, whereas a recorded deed or conveyance has priority over subsequent deeds or conveyances.

ADVERSE POSSESSION

AKA "title by prescription". Is the right to land that a possessor obtains by retaining possession: for required duration; only for possessor's benefit; not resulting from fraud; in a public, continuous, exclusive, uninterrupted, peaceful manner; with a claim of right; w/o permission.

ADVERSE POSSESSION. OTHER CONSIDERATIONS

1. Occupancy w/ permission cannot be basis for claim of adverse possession until after possessor notifies landowner that he is making an adverse claim. 2. Title cannot be obtained from the State of GA via adverse possession.

ADVERSE POSSESSION. REQUIRED DURATION

W/O written evidence of title -- 20 years.
W/ written evidence of title -- 7 years, but any time after the possessor learns that his title is fraudulent doesn't count

PROPERTY DESCRIPTION AND GOOD FAITH REQUIREMENT W/ EVIDENCE OF TITLE

The doc providing written evidence of title must sufficiently describe the property so as to allow identification of the land. And a possessor of land who does so w/ evidence of title must be in good faith regarding his title.

TOLLING OF PERIODS

No prescriptive period will run against: a minor during the years of minority; an incompetent person during the period of incompetency; an imprisoned person while he is imprisoned.

TACKING OF PERIODS

The prescriptive period begins to run when any of the tolling periods stops. Any prior period of possession can be tacked to the subsequent possession duration to make a total duration of occupancy.

USUFRUCT

Right to use and enjoy the advantages of something belonging to another as long as the property is not damaged or altered in any way. It is not taxable, whereas a leasehold estate is. An agreement that imposes sufficient conditions and limitations upon the use of the premises to indicate that no leasehold interest is conveyed creates a usufruct, as can one which makes the LL liable for all taxes.

TAX LIENS

Liens for unpaid ad valorem taxes (real property taxes) are superior to any other liens on real property. A usufruct is not subject to ad valorem taxes.

RULE AGAINST PERPETUITIES

GA has passed the Uniform Statutory Rule Against Perpetuities

UNIFORM STATUTORY RAP

A non-vested property interest is deemed invalid unless either: 1. When the interest is created, it is certain to vest or 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 90 years after its creation.

In GA, when determining if a nonvested property interest is valid under the USRAP,

disregard the possibility that a child will be born to an individual after the individual's death.

ACTION TO QUIET TITLE. PURPOSE.

Under GA's Quiet Title Act of 1966, a quia timet (quiet title) action against "all the world" serves to remove any cloud on title in order to render the title marketable.

ACTION TO QUIET TITLE. VENUE

Is a proceeding in rem (directed towards property, not a person); should be brought in the superior court of the county where the property is located; P need not be in possession of disputed property to bring action.

ACTION TO QUIET TITLE. TITLE

P wins or loses on the strength of his own title; to avoid a motion to dismiss, P must assert either current prescriptive title or current record title.

EJECTMENT. TITLE

P wins on the strength of his own title, not on the weakness of the D's; if both P and D claim title from a common grantor, they need not show title back of such grantor.

EJECTMENT. PRIOR POSSESSION VS. SUBSEQUENT POSSESSION

P can recover disputed land based only on P's prior possession of the land when D susequently takes possession via mere entry w/o any legal right.

TITLE THEORY

GA is a title theory state, not a lien theory state. Thus, in GA the lender gets legal title to the real property while the mortgagor retains only equitable title. In a lien theory state, the mortgagor retains legal and equitable title while the lender gets a lien on the real property.

INVERSE CONDEMNATION

Occurs when (in absence of prior eminent domain or condemnation proceedings) the government's taking or damaging of an owner's real property so adversely affects the use of the property that it effectively condemns the property; owner can then bring an action for just compensation against the government.

INVERSE CONDEMNATION. EXAMPLES

Can happen when government action taken for public purpose causes trespass or nuisance resulting in diminished functionality and utility of an owner's real property. Examples include temporary taking of land to construct a turn lane, increased noise and odor from county sewage treatment plant, and flooding from surface water diverted by roadway maintenance.

REGULATORY TAKINGS

A zoning ordinance effects a regulatory taking if it does not substantially advance legitimate state interests or it denies an owner economically viable use of his land. If it does not eliminate all economically beneficial use of the land, the regulation may still be a taking depending on such factors as the economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.

SECURITY DEEDS AND PROMISSORY NOTES.

A creditor can lend funds to a debtor for the debtor to buy real property. The real property can secure the debt evidenced by the promissory note by means of a security deed, which may be recorded, thereby providing constructive notice of its existence. The security deed can provide for the creditor's power to sell the property and it creates a lien on the property.

SECURITY DEEDS AND PROMISSORY NOTES. DEFAULT.

The parties can define a default in their note. If not, then nonpayment of the note constitutes default.

SECURITY DEEDS AND PROMISSORY NOTES. ACCELERATION.

The parties may provide in their note for acceleration of payment upon the happening of a specified event, such as a default. E.g. they might have an acceleration clause which provides that the full balance is due immediately if any payment is 10 days late.

SECURITY DEEDS AND PROMISSORY NOTES. REMEDIES & PROCEDURES.

Creditor is not required to choose between suing or foreclosing: he can pursue both remedies concurrently until the debt is satisfied.

What is GA's confirmation statute and what does it apply?

The confirmation statute is the law that requires that a creditor confirm a non-judicial foreclosure with a court before the creditor can take any further legal action against the debtor to obtain any remaining deficiency balance.

SECURITY DEEDS AND PROMISSORY NOTES. REMEDIES & PROCEDURES. DEFICIENCY JUDGMENT.

A creditor who does not recover the entire unpaid balance due on a promissory note (secured by a security deed) through foreclosure may seek to recover the deficiency balance by means of a separate action to obtain a deficiency judgment (lien).

CONFIRMATION STATUE. MORTGAGES, SECURITY DEEDS, OR OTHER LIEN CONTRACTS

The confirmation statute applies (a) when any real property is sold through non-judicial foreclosure and under powers obtained in mortgages, security deeds, or other lien contracts and (b) the sale proceeds are less than the debt secured.

CONFIRMATION STATUTE. CONFIRMATION AND APPROVAL.

The party which brought the foreclosure proceedings cannot take action to get a deficiency judgment unless this party, w/n 30 days after the sale of real property,, reports it to the Superior Ct. of the county where the property is located for confirmation & approval.

CONFIRMATION STATUTE. TRUE MARKET VALUE.

The court may not confirm the sale unless the property sold for its true market value; evidence of said true market value must be provided to the court.

CONFIRMATION STATUTE. NOTICE & JUDICIAL SCRUTINY.

The debtor must be provided notice of the hearing at least 5 days prior to the hearing, at which the ct. must determine the legality of the notice, advertisement, and regularity of the sale. Ct. may order a resale for good cause shown.

CONFIRMATION STATUTE. ATTORNEY'S FEES.

Obligations to pay attorney's fees necessary to collect on a note in default are valid, enforceable and collectible.

DEED TO SECURE DEBT. Generally.

Conveyance of a deed to secure a debt occurs when a property owner conveys a deed showing the owner's interest in the property to another party in return for a loan. The other party must reconvey the property interest to the owner upon repayment.

DEED TO SECURE DEBT. 1) DEED TO SECURE DEBT AS ABSOLUTE DEED

A grantor may convey real property by a "deed to secure debt" to a grantee who loans the grantor money. Title is passed to the grantee. The conveyance is absolute, but the grantor reserves the right to have the property conveyed back to him upon payment of debt.

DEED TO SECURE DEBT. 2) NECESSITY OF BOND OF TITLE OR TO RECONVEY

The grantor takes a bond for title back to him upon payment of the debt to the grantee. No such bond is necessary if the deed shows upon its face that it is provided to secure a debt.

DEED TO SECURE DEBT. 3) CANCELLATION OF DEED AS RECONVEYANCE OF TITLE

When property is conveyed to secure a debt, the surrender and cancellation of the deed on repayment of the debt will operate to reconvey the property's title to the grantor or the grantor's heirs, assigns, administrators, or executors.

DEED TO SECURE DEBT. 4) NO SEVERANCE DUE TO EXECUTION OF DEED

If a grantor owns real property as a joint tenant with right of survivorship, then his execution of a deed to secure debt is not such a transfer of his interest in the property that it would sever the joint tenancy with right of survivorship.

LIFETIME TRANSFER

A joint tenant with right of survivorship can sever the joint tenancy by recording an instrument that results in his lifetime transfer of his interest in a parcel of real property, unless all the joint tenants join in the same recorded lifetime transfer.

LIS PENDENS. GENERAL CONSIDERATIONS.

Means "suit pending." A notice of lis pendens is a written notice that a lawsuit has been filed concerning real estate, involving either the title to the property or a claimed ownership interest in it.

LIS PENDENS. NOTICE MUST BE FILED AND RECORDED.

The notice of lis pendens must be filed with, and recorded by, the clerk of the superior court of the county of GA where the real property is located.

EFFECT OF PROPER NOTICE OF LIS PENDENS

It has the effect of providing third parties such as potential purchasers or creditors with record notice that this real property is the subject of a lawsuit; anyone who nevertheless purchases the property described takes subject to the ultimate decision of the lawsuit.

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