Execution Search Prior to Conveyance of Property; Certificate of Clearance Required; Requirements for Requests; Binding Effect; Timing of Information Release; Failure to Comply; Retention; Criminal Penalties; Exceptions; Requirements for Certificate; Regulatory Authority

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  5. Execution Search Prior to Conveyance of Property; Certificate of Clearance Required; Requirements for Requests; Binding Effect; Timing of Information Release; Failure to Comply; Retention; Criminal Penalties; Exceptions; Requirements for Certificate; Regulatory Authority

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Reserved. Repealed by Ga. L. 2018, p. 1, § 6/HB 661, effective February 20, 2018.

Editor's notes.

- This Code section was based on Code 1981, § 44-1-18, enacted by Ga. L. 2017, p. 723, § 12/HB 337.

Ga. L. 2018, p. 1112, § 54(e)/SB 365, part of an Act to revise, modernize, and correct the Code, effective May 8, 2018, not codified by the General Assembly, provides: "In the event of an irreconcilable conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendments to subsection (a) of this Code section by Ga. L. 2018, p. 1112, § 44(1)/SB 365, were not given effect.

CHAPTER 2 RECORDATION AND REGISTRATION OF DEEDS AND OTHER INSTRUMENTS Article 1 Recording. Part 1 RECORDING OF DEEDS AND OTHER REAL PROPERTY TRANSACTIONS.
  • 44-2-1. Where and when deeds recorded; priority as to subsequent deeds taken without notice from same vendor.
  • 44-2-2. Duty of clerk to record certain transaction affecting real estate and personal property; priority of recorded instruments; effect of recording on rights between parties to instruments.
  • 44-2-3. Voluntary deeds or conveyances of land; effect of recording.
  • 44-2-4. Protection of good faith purchases and liens without notice against unrecorded liens or conveyances.
  • 44-2-5. Recording execution and deed after sheriff's sale.
  • 44-2-6. Recording bond for title, contracts, transfers, and assignments; priority as to subsequent deeds taken without notice from same vendor.
  • 44-2-7. Recording of surrender or satisfaction of bond for title.
  • 44-2-8. Recording of options to purchase land and assignments of such options; effect as notice.
  • 44-2-9. Recording leases, usufructs, and assignments thereof; effect as notice.
  • 44-2-10. Recording deeds and bills of sale to personalty; effect as notice.
  • 44-2-11. Recording copy of instrument recorded in other counties in which part of affected land is located in cases where original lost or destroyed.
  • 44-2-12. Rerecording lost or destroyed deeds and other instruments; validity.
  • 44-2-13. Rerecording instruments upon creation of new county or change in county lines; effect on validity of original record.
  • 44-2-14. Requirements for recordation.
  • 44-2-15. Officers authorized to attest registrable instruments.
  • 44-2-16. Effect of acknowledgment subsequent to execution.
  • 44-2-17. Validity of attestation by a state or county officer who appears to have no jurisdiction to attest the instrument.
  • 44-2-18. Recording deed upon affidavit of subscribing witness; effect of substantial compliance.
  • 44-2-19. Recording deed on affidavit of third person.
  • 44-2-20. Recorded affidavits relating to land as notice of facts cited therein; filing and recording.
  • 44-2-21. Recording instrument executed out of state; attestation and acknowledgment; validity of attestation by officer who appears to have no jurisdiction to attest the instrument.
  • 44-2-22. Legal effect of good record title for 40 years.
  • 44-2-23. When deed serves as evidence; effect of affidavit alleging forgery [Repealed].
  • 44-2-24. Withdrawal of affidavit of forgery upon loss of deed by affiant.
  • 44-2-25. Recording techniques; copies of plats.
  • 44-2-26. Recording of plat or copy of plat - When and where authorized; duty of clerk.
  • 44-2-27. Recording of plat - When deemed recorded.
  • 44-2-28. Recording of plat or copy of plat - Incorporation by reference.
  • 44-2-29. Recording of plat or copy of plat - Ratification of record made prior to statutory authorization; effect of incorporation by reference of plat prior to authorization.
  • 44-2-30. Filing and recording of notice of settlement.
Part 2 UNIFORM REAL PROPERTY ELECTRONIC RECORDING.
  • 44-2-35. Short title.
  • 44-2-36. Definitions.
  • 44-2-37. Electronic documents treated as original; electronic signatures acceptable.
  • 44-2-38. Role of clerk of court.
  • 44-2-39. Adoption of rules and regulations; standardization.
  • 44-2-39.1. Promotion of uniformity.
  • 44-2-39.2. Construction with federal law.
Article 2 Land Registration. Part 1 IN GENERAL.
  • 44-2-40. Short title.
  • 44-2-41. Definitions.
  • 44-2-42. Performance of clerk's and sheriff's duties by deputies; liability.
  • 44-2-43. Fraud, forgery, and theft in connection with registration of title to land; penalty.
  • 44-2-44. Fraudulent acts by office of clerk personnel; penalties.
  • 44-2-45. Fraud or false entries by sheriffs and deputies; penalties.
  • 44-2-46. Fraudulent acts and malpractice of examiners; penalty.
  • 44-2-47. Reduction of felonies under this article to misdemeanors.
Part 2 PROCEEDINGS TO REGISTER.
  • 44-2-60. Jurisdiction of superior court over matters in this article.
  • 44-2-61. Proceedings to be in rem; operation of decree.
  • 44-2-62. Procedure as to actions for registration; persons under disability.
  • 44-2-63. Persons claiming less than fee; establishing title without registration.
  • 44-2-64. Petition - Verification; contents; description of land; surveys; amendments.
  • 44-2-65. Petition - Inclusion of separate parcels in one proceeding; individual registration of separate parts of one tract.
  • 44-2-66. Petition - Persons included as defendants.
  • 44-2-67. Issuance and service of process or summons; service by publication; notice to nonresidents; request for petition; guardians ad litem.
  • 44-2-68. Appointment of resident agent for service on nonresident petitioner.
  • 44-2-69. Service upon state, county, or municipality.
  • 44-2-70. Waiver or acknowledgment of service.
  • 44-2-71. Conclusive effect of evidence of service of process and notice; liability of officers for false returns or failure to publish or mail notice.
  • 44-2-72. Posting notice on land and buildings; ascertainment of and notice to occupants; return to court; seizure and custody of the land and attachment of jurisdiction.
  • 44-2-73. Effect of notice; appearances or pleadings as waiver of service, notice, and defects.
  • 44-2-74. Service on other persons found by examiner to be entitled to notice.
  • 44-2-75. Additional notice; judge's discretion.
  • 44-2-76. Who may file objections or cross-action to petition.
  • 44-2-77. Survey of land upon order of judge or examiner; notice to adjoining landowners; protest; procedure for trying issue.
  • 44-2-78. Dismissal without prejudice.
  • 44-2-79. Amendment or severance of petitions or other pleadings; power of court or examiner to require additional facts.
  • 44-2-80. Treatment of land pending registration; appearance of person acquiring interest in land pending registration.
  • 44-2-81. No default judgment or decree.
  • 44-2-82. Entry of judgment and decree; inclusion of limitations and encumbrances; decree in favor of cross-action; separate decree for each parcel.
  • 44-2-83. Conclusiveness of decree; effect of disability on conclusiveness; recourse of persons under a disability against assurance fund.
  • 44-2-84. Review by Court of Appeals.
Part 3 EXAMINERS.
  • 44-2-100. Appointment and qualification of examiners and special examiners; filing order of appointment and affidavit.
  • 44-2-101. Referral of case to examiner; preliminary report; contents; time of filing.
  • 44-2-102. Hearing; final report; delay of hearing to add new parties; notice.
  • 44-2-103. Examiner's powers; contents, filing, and notice of examiner's report; right to jury trial, new trial, and appeal; recommitment to examiner after trial or reversal on appeal.
  • 44-2-104. Authority to inspect pertinent records.
  • 44-2-105. Appointment of stenographer; compensation.
Part 4 REGISTERS AND REGISTRATION.
  • 44-2-120. Furnishing and maintaining register books; issuance of owner's certificate of title.
  • 44-2-121. Signing and dating register entries and owners' certificates.
  • 44-2-122. Clerk's duties and liabilities; conclusive effect of registration entries; time for filing caveat; petition for direction.
  • 44-2-123. Clerk's duty to ensure proper execution of voluntary transfer; liability for damage or loss arising from registration of improperly executed transfer.
  • 44-2-124. Performance of duties upon disqualification, death, or disability of clerk.
  • 44-2-125. When recordation other than registration not required; filing instruments; admissibility of certified copies and use as evidence; recordation procedure when instrument is not in short form.
  • 44-2-126. Notation of lien or encumbrance on certificate of title - In general.
  • 44-2-127. Notation of lien or encumbrance on certificate of title - Registered encumbrances, rights, and adverse claims.
  • 44-2-128. Registration of transactions affecting unregistered land as notice.
  • 44-2-129. Registration of involuntary transactions on court's order; form.
  • 44-2-130. Cancellation of decedent's certificate and issuance of new certificate to personal representative.
  • 44-2-131. Declaration of title by descent upon petition; service of petition and publication of notice; transfer of registered title and issuance of new certificates; rights of surviving spouse.
  • 44-2-132. Compelling production of owner's certificate for registration of involuntary transfer; cancellation of certificate upon failure to produce it; notice of cancellation.
  • 44-2-133. Procedure for obtaining duplicate of lost owner's certificate.
  • 44-2-134. Filing caveat objecting to entry in title register; show cause hearing upon caveat.
  • 44-2-135. Obtaining notations in title register.
  • 44-2-136. Cancellation of mortgage, lien, equity, or lis pendens; entry of cancellation on title register and certificate; procedure upon refusal to authorize cancellation.
  • 44-2-137. What adverse claims affect registered land; effect of fraud or forgery; limitations on actions to set aside.
  • 44-2-138. What limitations govern actions by injured party for fraud or negligence.
  • 44-2-139. Registration and title certificate to run with land [Repealed].
  • 44-2-140. Availability of prescription or adverse possession against registered land.
  • 44-2-141. Rights, burdens, and incidents as to both registered and unregistered land; validity of transfers of title by last registered owner.
  • 44-2-142. Notation of change of name on register and certificate.
  • 44-2-143. Notation of liens and lis pendens on register; effect absent notation.
  • 44-2-144. Freeing land from further registration; certificates as conclusive source of title; notation of encumbrances; when land automatically freed; registered land free of further registration; exception.
Part 5 CONVEYANCE, TRANSFER, AND DESCENT.
  • 44-2-160. Manner of recording deeds conveying title to registered land; validity of previous conveyances of registered land.
  • 44-2-161. Partial transfer of registered land; undivided interest; interest in particular portion; notations on register; issuance of certificates.
  • 44-2-162. Subdivision of registered land; procedure.
  • 44-2-163. Conveyance to secure debt; form; notation and registration; creditor's certificate.
  • 44-2-164. Assignment or negotiation of creditor's certificate; effect of transfer of indebtedness; surrender and cancellation of certificate; order of cancellation; notation.
  • 44-2-165. Sale by holder of creditor's certificate; application for transfer to purchaser; opportunity to object to transfer; order of application of sale proceeds.
  • 44-2-166. Transfer to secure debt; notation of bond for title or to reconvey.
  • 44-2-167. Validity and priority of unrecorded transfers of owner's certificate to registered lands.
  • 44-2-168. Descent of registered land as personalty [Repealed].
  • 44-2-169. Personal representative as trustee; right of personal representative to a commission; power of heirs to require transfer.
  • 44-2-170. Right of personal representative to have registered land transferred to him where such land transferred to heirs before his appointment; action against heirs who have improperly appropriated land.
  • 44-2-171. Procedure for ascertaining, and transfer to, heirs or beneficiaries.
  • 44-2-172. Transfer by clerk pursuant to judgment; production of copy of decree and order.
  • 44-2-173. Petition for involuntary transfer; referral to examiner; notice; appointment of guardians ad litem; order of transfer.
  • 44-2-174. Attack on transfers made to hinder, delay, or defraud creditors; decree voiding such transfer; entry of cancellations and transfers on register and certificate.
  • 44-2-175. Registering subsequent transfers or voluntary conveyances of land held in trust or otherwise restricted.
  • 44-2-176. Duty of tax officer to have delinquent taxes or assessments noted; effect of delinquencies prior to notation; liability of officer.
Part 6 ASSURANCE FUND.
  • 44-2-190. Payment into assurance fund upon original registration; determination of amount.
  • 44-2-191. Separate account for assurance fund.
  • 44-2-192. Investment of fund; application of income; transfer of excess.
  • 44-2-193. Action against fund - Limitations; defense by Attorney General; measure of damages; tolling of limitations during disability; notice to unknown persons.
  • 44-2-194. Action against fund - Parties defendant.
  • 44-2-195. Action against fund - Execution on judgment; payment from fund; liability of other defendants to plaintiff and to fund.
  • 44-2-196. Action against fund - How judgments satisfied when fund insufficient; interest.
  • 44-2-197. Liability of fund for registered owner's breach of trust.
Part 7 FEES.
  • 44-2-210. Fees under article; deposit and payment of fees; award of costs.
Part 8 FORMS.
  • 44-2-220. Power of judges to make general rules and forms for matters under this article; power to modify forms; uniformity of forms.
  • 44-2-221. Petition to register land.
  • 44-2-222. Process.
  • 44-2-223. Advertisement.
  • 44-2-224. Acknowledgment of service.
  • 44-2-225. Sheriff's return.
  • 44-2-226. Certificate of mailing; entry of such certificate on petition.
  • 44-2-227. Examiner's appointment.
  • 44-2-228. Oath of examiner.
  • 44-2-229. Referral to examiner.
  • 44-2-230. Preliminary report of examiner; schedules.
  • 44-2-231. Final report of examiner.
  • 44-2-232. Decrees of title.
  • 44-2-233. Book of decrees; index.
  • 44-2-234. Title register book; registered title number; index of title register.
  • 44-2-235. Duty of clerk to enter on new certificate all entries and notations of record.
  • 44-2-236. Certified copies of certificates of title or entries thereon.
  • 44-2-237. Recordation and notation of plat.
  • 44-2-238. Recordation of lengthy description - Reference on title register; effect.
  • 44-2-239. Recordation of lengthy description - Notation on owner's or creditor's certificate; attaching certified copy; fee.
  • 44-2-240. Owner's certificate of title.
  • 44-2-241. Transfer of whole of registered estates, undivided interests, divided portions, and to secure debt, with power of sale.
  • 44-2-242. Creditor's certificate; endorsement of certificate.
  • 44-2-243. Transfer of portion or undivided interest to secure debt.
  • 44-2-244. Judge's order of transfer.
  • 44-2-245. Registration and recordation of mortgages.
  • 44-2-246. Notation of delinquent taxes or assessments.
  • 44-2-247. Notation of judgment.
  • 44-2-248. Notation of special right; notice of lis pendens; recordation and notation of lengthy descriptions.
  • 44-2-249. Cancellation of creditor's certificate.
  • 44-2-250. Request to cancel entries.
  • 44-2-251. Registration and notation of other voluntary transactions [Repealed].
  • 44-2-252. Updating entries and notations on owner's certificate; clerk's endorsement.
  • 44-2-253. Filing cases; method of filing papers relating to registered lands.
Cross references.

- Recording of maps or plats of real estate by clerk of superior court generally, § 15-6-67 et seq.

Title insurance, § 33-7-8.

Filing conveyances of property to or by state with State Properties Commission, § 50-16-122.

For application of this chapter in 2020, see Executive Order 03.31.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

Law reviews.

- For article discussing the problems with acquiring good title, see 15 Ga. B.J. 281 (1953). For article advocating the adoption of a marketable title statute in Georgia, see 16 Ga. B.J. 263 (1954). For article on title examinations and closings, see 22 Mercer L. Rev. 505 (1971). For article discussing 1976 to 1977 developments in Georgia real property law, see 29 Mercer L. Rev. 219 (1977).

JUDICIAL DECISIONS

Construed with Chapter 11 of this Title.

- Relief in ejectment is not coextensive with that under Title 22 of the Land Registration Act in that ejectment title can never be settled as against the world. Conversely, relief may be had in ejectment which cannot be had under the Act, including possession of the premises and judgment for mesne profits. Union Bag-Camp Paper Corp. v. Coffee County Hunting & Fishing Club, 216 Ga. 44, 114 S.E.2d 511 (1960).

Effect of registration law on adverse possession.

- Protection which the registration law gives to one taking title to lands upon the faith of the record title should not be destroyed except upon clear and satisfactory evidence showing a clear equity in one who seeks to establish a right in hostility to the record title by adverse possession. Such possession must be actual, open, visible, exclusive, and unambiguous. McDonald v. Taylor, 200 Ga. 445, 37 S.E.2d 336 (1946).

Sufficiency of evidence proving title.

- Title to land cannot be proved by hearsay testimony. Neither can title to land be established by general reputation in the community as to ownership. City of Marietta v. Glover, 225 Ga. 265, 167 S.E.2d 649 (1969).

Cited in Craig v. Arnold, 227 Ga. 333, 180 S.E.2d 733 (1971).

RESEARCH REFERENCES

Prospective Purchaser's Recovery of Damages for Tortuous Interference with Real Estate Contract, 97 Am. Jur. Trials 107.

Real Estate Broker's Breach of Fiduciary Duty to Disclose Material Facts to Seller-Principal, 101 Am. Jur. Trials 1.

ALR.

- Concealment, misrepresentation, or mistake as regards identity of person for whom property is purchased as ground for cancellation of deed, 6 A.L.R.2d 812.

Clay, sand, or gravel as "minerals" within deed, lease, or license, 95 A.L.R.2d 843.

ARTICLE 1 RECORDING

Cross references.

- Real estate transfer taxes, see § 48-6-1 et seq.

Law reviews.

- For article, "Noticing the Bankruptcy Sale: The Purchased Property May Not Be as 'Free and Clear of All Liens, Claims and Encumberances' as You Think," see 15 (No. 5) Ga. St. B. J. 12 (2010). For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Casenote: The Decline and Fall of Constructive Notice," see 65 Mercer L. Rev. 1203 (2014).

JUDICIAL DECISIONS

Effect of grantor's conveyance to another before grantor became owner.

- Title of a bona fide purchaser is not impaired by a conveyance from the purchaser's grantor to another, which was made and filed before the purchaser's grantor became the owner of the property, since to hold otherwise would be to require a purchaser to extend back indefinitely the purchaser's period of record search against the name of each prior owner. Insilco Corp. v. Carter, 245 Ga. 513, 265 S.E.2d 794 (1980).

Constructive notice of subsequent deeds.

- Purchaser has constructive notice of any deeds out of the purchaser's grantor from the date of deed, rather than the date of the deed's recording. Insilco Corp. v. Carter, 245 Ga. 513, 265 S.E.2d 794 (1980).

Constructive notice.

- Chapter 7 trustee, as a bona fide purchaser for value, could not take the property at issue free of the creditor's security deed as to the debtor wife's interest in the property because the recording of the security deed provided constructive notice to the trustee of the creditor's interest in the property. Pettie v. RBC Mortg. Co. (In re Jackson), Bankr. (Bankr. N.D. Ga. Sept. 17, 2019).

Cited in Gray v. Georgia Real Estate Comm'n, 209 Ga. 301, 71 S.E.2d 645 (1952).

OPINIONS OF THE ATTORNEY GENERAL

Instrument which conveys only security interest in personal property is not entitled to recording as an instrument affecting title to land. 1975 Op. Att'y Gen. No. U75-87.

RESEARCH REFERENCES

ALR.

- Record of executory contracts for the sale of real estate, 26 A.L.R. 1546.

Fraudulent misrepresentation or concealment by a contracting party concerning title to property or other subjects which are matters of public record, 33 A.L.R. 853; 56 A.L.R. 1217.

Allowance for improvements in reliance upon title or interest defeated by failure to record conveyance, 40 A.L.R. 282.

Use of diminutive or nickname as affecting operation of record as notice, 45 A.L.R. 557.

Failure to record or delay in recording an instrument affecting real property as basis of estoppel in favor of creditors not directly within protection of recording acts, 52 A.L.R. 183.

Presumption or burden of proof as to whether or not instrument affecting title to property is recorded, 53 A.L.R. 668.

Grantee or mortgagee by quitclaim deed or mortgage in quitclaim form as within protection of recording laws, 59 A.L.R. 632.

Effect of alteration in deed or mortgage with consent of parties thereto after acknowledgment or attestation, 67 A.L.R. 364.

Assignment of future rents as within recording laws, 75 A.L.R. 270.

Right of one otherwise protected by recording law against prior unrecorded deed or mortgage as affected by fact that all or part of the consideration was unpaid at the time he received notice, actual or constructive, of the prior instrument, 109 A.L.R. 163.

Federal government or agencies of federal government as subject to payment of tax or fee imposed upon, or for, recording or filing instrument, 124 A.L.R. 1267.

Validity and effect, as to previously recorded instrument, of statute which places or changes time limit on effectiveness of record of mortgages or other instruments, 133 A.L.R. 1325.

Record of instrument which comprises or includes an interest or right that is not a proper subject of record, 3 A.L.R.2d 577.

Agreement between real estate owners restricting use of property as within contemplation of recording laws, 4 A.L.R.2d 1419.

Personal covenant in recorded deed as enforceable against grantee's lessee or successor, 23 A.L.R.2d 520.

Recorded real property instrument as charging third party with constructive notice of provisions of extrinsic instrument referred to therein, 89 A.L.R.3d 901.

PART 1 RECORDING OF DEEDS AND OTHER REAL PROPERTY TRANSACTIONS

Editor's notes.

- Ga. L. 2009, p. 695, § 1, effective May 5, 2009, designated Code Sections 44-2-1 through 44-2-30 as this part.

Law reviews.

- For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Casenote: The Decline and Fall of Constructive Notice," see 65 Mercer L. Rev. 1203 (2014).


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