(Orig. Code 1863, §§ 811, 813; Code 1868, §§ 891, 893; Code 1873, §§ 888, 890; Ga. L. 1876, p. 30, § 1; Code 1882, §§ 888, 890; Civil Code 1895, §§ 905, 907; Civil Code 1910, §§ 1165, 1167; Code 1933, §§ 92-8101, 92-8102; Code 1933, § 91A-401, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 884, § 3-34; Ga. L. 1985, p. 1243, § 4; Ga. L. 1988, p. 1957, § 1; Ga. L. 1990, p. 1875, § 2; Ga. L. 2000, p. 1408, § 2; Ga. L. 2000, p. 1589, § 3; Ga. L. 2002, p. 1481, § 2; Ga. L. 2006, p. 770, § 4/SB 585; Ga. L. 2019, p. 271, § 1/SB 216; Ga. L. 2020, p. 493, § 48/SB 429.)
The 2019 amendment, effective July 1, 2019, added paragraph (a)(3).
The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, deleted "or" following "his or her" in the first sentence of paragraph (a)(3).
Cross references.- Judicial sales generally, § 9-13-140 et seq.
Editor's notes.- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.
Ga. L. 2006, p. 770, § 8/SB 585, not codified by the General Assembly, provides: "The provisions of this Act shall apply to all executions transferred on or after July 1, 2006. Executions transferred prior to July 1, 2006, shall not be affected by this Act."
Law reviews.- For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016).
JUDICIAL DECISIONS
Sales to which section applicable.
- Statute applies as well to sales made under execution issued by the comptroller general (now commissioner) as to sales made under execution issued by the tax collector of any county. Bedgood & Royal v. McLain, 89 Ga. 793, 15 S.E. 670 (1892).
Statute does not apply to sales by the marshal of a town or city. Ansley v. Wilson, 50 Ga. 418 (1873).
Sales under executions for municipal taxes must strictly comply with requirements.
- Prior to the adoption of the Code, the utmost particularity was required in respect to sales under executions for taxes, and the law had to be complied with in every respect. Such still is the case as to sales under executions for municipal taxes. Byars v. Curry, 75 Ga. 515 (1885).
Standing to attack tax sale.
- Holder of title to property who had been given notice of the tax sale and the opportunity to pay the tax and avoid the tax sale could not attack the sale on the ground of lack of notice to another party. GE Capital Mtg. Servs. Inc. v. Clack, 271 Ga. 82, 515 S.E.2d 619 (1999).
Sales of realty under tax fieri facias and judgment may not be combined.
- Real estate when sold under a tax fieri facias being redeemable, and when sold under a judgment being irredeemable, there is such incompatibility in these incidents that they cannot combine and both follow from a single sale made by one and the same act, though sufficient authority for making a sale of either class be in the officer's hands. Clower v. Fleming, 81 Ga. 247, 7 S.E. 278 (1888).
Effect of combined sale of real estate under fieri facias and judgment.
- Sale made under such circumstances will not be void, but will assume the characteristics of a tax sale. Clower v. Fleming, 81 Ga. 247, 7 S.E. 278 (1888).
Officer conducting judicial sale must keep sale open until competent bid is received or until the officer is satisfied that such a bid will not be offered. Upon failure of the purchaser to comply with a high bid, the sheriff does not have the authority to convey the property to the next highest bidder, but may resell the property within legal hours on the same day without readvertisement. Wachovia Mtg. Co. v. DeKalb County, 241 Ga. 416, 246 S.E.2d 183 (1978).
Property sold under tax execution should be knocked off to highest bidder; on failure of the highest bidder to comply with the bid, the sheriff has no authority to convey the property to the next highest bidder. Citizens Bank v. Lamar County, 187 Ga. 123, 200 S.E. 257 (1938).
Effect of "waiver" by highest bidder in favor of next highest bidder.
- When land levied on as property of a named person, under tax execution against such person, was offered for sale by the sheriff on the regular sales day and the county was outbid by the bank and it was knocked off to the bank, and when the bank did not on the day of the sale pay the purchase price or receive a deed, but sometime thereafter "waived" the bank's bid in favor of the county in order that the sheriff might make a deed to the county upon the county's bid, which action was also assented to by the defendant in the fieri facias, the transaction did not constitute a judicial sale of the land to the county, and a deed conveying land to the county was void as against the holder of an outstanding security deed executed by the defendant in fieri facias before accrual of taxes. Citizens Bank v. Lamar County, 187 Ga. 123, 200 S.E. 257 (1938).
When sale deemed complete for purposes of measuring period of redemption.
- For purposes of determining the right to redeem land which has been sold at a tax sale, the sale is not to be considered complete until payment of purchase money by bidder. Zugar v. Scarbrough, 186 Ga. 310, 197 S.E. 854 (1938).
When the purchaser at a tax sale was represented at the sale by the county tax collector who, instead of paying the amount of the bid to the sheriff, merely paid the sheriff's costs and the advertising fee and, in an adjustment of the collector's account as a tax collector, settled with the county commissioners by deducting the taxes from credits to which the sheriff was entitled, there was no such payment of the purchase money as to cause the period of redemption to commence. Zugar v. Scarbrough, 186 Ga. 310, 197 S.E. 854 (1938).
Right of redemption following bankruptcy.
- LLC that purchased a debtor's home at a tax sale held pursuant to O.C.G.A. § 48-4-1 was entitled to an order lifting the stay that was imposed when the debtor declared Chapter 13 bankruptcy so the LLC could foreclose the deed the LLC received; although the debtor had the right under O.C.G.A. § 48-4-40 to redeem title to the home at the time the debtor declared bankruptcy because the time for doing so had not expired under state law, the debtor lost that right when the debtor failed to pay the LLC the amount it spent to purchase the tax deed, and the debtor's attempt to pay that amount in increments through the debtor's plan failed because the home was not property of the debtor's bankruptcy estate under 11 U.S.C.S. § 541. Harvest Assets, LLC v. Edwards (In re Edwards), Bankr. (Bankr. N.D. Ga. Nov. 13, 2014).
Tax sale of property proper.
- Trial court properly granted summary judgment to the purchaser of real estate in a quiet title action that involved the taxpayer's home and the taxpayer's failure to pay the property taxes on the property as the property was properly levied upon and no question of fact remained that the sheriff officially seized the property. Further, the affidavits of the civil process coordinator at the time of the tax sale, and the coordinator's successor, were properly admitted into evidence as such affidavits fell within the business records exception to the rule against hearsay. Davis v. Harpagon Co., LLC, 283 Ga. 539, 661 S.E.2d 545 (2008).
In a purchaser's quiet title action against the executor of a testatrix's estate, the trial court did not err in adopting the report of a special master and in decreeing that fee simple title to the land was vested in the purchaser because the purchaser acquired title to the property by virtue of a tax sale and deed, which was conducted in accordance with O.C.G.A. § 48-4-1 et seq.; a title search showed the testatrix's nephew as holding record title to the property, but out of caution, both the nephew and the executor were served with notice of the tax sale, the tax commissioner met with the executor prior to the sale and offered to accept payment for the back taxes, but the executor failed to do so, and the property was sold to the purchaser, with the overage going to the nephew, and the executor did not timely seek to exercise a right of redemption under O.C.G.A. § 48-4-40. Mann v. Blalock, 286 Ga. 541, 690 S.E.2d 375 (2010).
Trial court did not err in granting summary judgment to the county as the nuisance abatement statute did not preclude the county from using a nonjudicial tax foreclosure sale, instead of a judicial in rem tax foreclosure sale, to sell the property because: both methods were available for collecting real property ad valorem taxes; judicial in rem tax foreclosure procedures were an alternative to nonjudicial tax foreclosure procedures, rather than a replacement for them; and the nuisance abatement statute did not require the county to use a judicial in rem tax foreclosure sale when collecting on a nuisance abatement lien. Derby Props., LLC v. Watson, 346 Ga. App. 631, 816 S.E.2d 766 (2018).
Effect of tax sale under an execution issued against one other than property owner.
- When an owner fails to return land, there is no provision of law whereby the owner's title can be divested by levy and sale of the property as property of another person under a tax execution issued against such other person. Nelson v. Brown, 174 Ga. 150, 162 S.E. 276 (1932).
As a general rule, no property can be sold under a tax execution in personam as the property of the defendant therein, if the defendant has neither title nor possession, nor any right to represent the person who has the property; and a sale under these circumstances would be void as to the true owner. James v. Riley, 181 Ga. 454, 182 S.E. 604 (1935).
Entitlement to excess funds after tax sale.
- Trial court erred by granting summary judgment to the property owner because the trial court erred by holding that the security deed holder lost the holder's right to excess funds that arose from the tax sale as the relevant date under O.C.G.A. § 44-14-80 when considering who was entitled to the excess funds from the tax sale was the tax sale date, not the fund distribution date. Worthwhile Investments, LLC v. Higgins, 337 Ga. App. 183, 787 S.E.2d 245 (2016).
Tax commissioner immune to action for damages for failure to give notice.
- Property owner's claim for damages based on a county tax commissioner's failure to properly send notices required by O.C.G.A. §§ 9-13-13,48-3-3,48-3-9(a), and48-4-1 was barred by sovereign immunity; O.C.G.A. §§ 15-13-2 and48-5-137 did not render the tax commissioner liable as an ex-officio sheriff because the notices did not constitute a "false return" or legal neglect to make a "proper return". Raw Properties, Inc. v. Lawson, 335 Ga. App. 802, 783 S.E.2d 161 (2016).
Cited in Croft v. Fairfield Plantation Prop. Owners Ass'n, 276 Ga. App. 311, 623 S.E.2d 531 (2005); DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 335 Ga. App. 318, 779 S.E.2d 436 (2015).
RESEARCH REFERENCES
Am. Jur. 2d.
- 30 Am. Jur. 2d, Executions, § 255 et seq. 72 Am. Jur. 2d, State and Local Taxation, § 807.
C.J.S.- 85 C.J.S., Taxation, § 1221 et seq.
ALR.
- Doctrine of marshaling assets or sale in inverse order of alienation as applicable to tax sale, 88 A.L.R. 1216; 131 A.L.R.4th 79.
Construction, application, and effect of statutory provision requiring seizure and possession of property before sale for delinquent taxes, 105 A.L.R. 635.
Right of officer conducting sale under execution or distress warrant to refuse to accept best bid because inadequate, 110 A.L.R. 1077.
What amounts to a sale at retail within tax statutes or ordinances, 139 A.L.R. 372.
Necessity of consent of court to tax sale of property in custody of court or of receiver or trustee appointed by it, 3 A.L.R.2d 893.
Property owner's liability for unpaid taxes following acquisition of property by another at tax sale, 100 A.L.R.3d 593.
Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.