Open Records Act in Georgia

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Help

If you’ve run into a roadblock getting public records in Georgia and need assitance making an open records request, we can help.

What does Georgia Law Say About Open Records?

Under Georgia law, the general rule is that all public records must be open for personal inspection and copying. The only exception are records that are specifically exempted from disclosure. OCGA § 50-18-70 et seq. A good resource is Georgia’s Office of the Attorney General.

Our office regularly requests open records in Georgia. Some government agencies have dedicated portals, some provide email addresses, and others offer no guidance or contact information. After we make a request, responses are all over the board. Sometimes we get complete records within a few days at no charge. Other times we get notice that the records won’t be ready for eight weeks. Sometimes we get a bill for the records. And often times we get incomplete and overly-redacted records.

Our experience is that most of the time, after the initial request, we have to follow up and fight to get the relevant public records. The government agency’s initial response is usually a result of a minimal effort and often in violation of the spirit of the law.

Purpose of Open Records

The [Open Records Act] was enacted in the public interest to protect the public — both individuals and the public generally — from “closed door” politics and the potential abuse of individuals and the misuse of power such policies entail. Therefore, the Act must be broadly construed to effect its remedial and protective purposes. The intent of the General Assembly was to encourage public access to information and to promote confidence in government through openness to the public and allow the public to evaluate efficient and proper functioning of its institutions.

Wallace v. Greene County, 274 Ga. App. 776, 782 (2) (618 SE2d 642) (2005).

Fortunately, Georgia has detailed open records statutes that government agencies must follow. For example, if public records exist, the government agency must produce the records within three business days of receipt of a request. Similarly, if the records exist and can’t be produced within three days, the agency is supposed to provide the requester with a description of available records and a timeline for when the records will be available for inspection or copying and provide the records or access as soon as practicable. This rule is on the books but rarely followed. Many other rules are too numerous to include here.

What Happens If a Government Agency Fails to Produce Open Records?

The first option is to follow up and try to get voluntary compliance. The second option is to contact The Office of the Attorney General to initiate a mediation. The third and most drastic option is to sue the government agency in superior court. Under Georgia law, a trial court may impose a civil penalty against anyone who negligently fails to provide public records. OCGA § 50-18-74 (a). The courts have interpreted this staute to mean that private citizens (everyday folks) can get damages for violations of the Open Records Act. Cardinale v. Keane, 362 Ga. App. 644 (869 S.E.2d 613) (2022).

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If you are seeking open records, please call us at (404) 382-9994 to discuss your options.

Subdivision Plats in Georgia

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subdivision plat

This blog concerns subdivision plats. During the development of a subdivision, the developer submits a subdivision plat to the county for approval. Once approved, the developer records the subdivision plat on the county’s real estate records.

Alleys, Parks and Water Courses, Drains, Easements and Public Places

The subdivision plat includes not only the dimensions of the developed lots but also includes alleys, parks and water courses, drains, easements, and public places. As the developer sells the lots in the subdivision, the deeds transferring the lots to the new owners mention the subdivision plat. When the deeds reference the plat, the new owner gets an automatic easement to use the alleys, parks and water courses, drains, easements and public places marked on the subdivision plat.

Transfer of Public Space from Developer to the HOA

Once the developer finishes the subdivision, the developer usually transfers the alleys, parks and water courses, drains, easements and public places to the neighborhood’s homeowner’s association.

Dedication to Public by the Developer

Recording a subdivision plat showing areas set apart for public use creates not only a grant of an easement to the purchasers of the property, but also raises a presumption of intent to dedicate to the public. However, to complete a dedication of land to public use, the developer must not only offer to dedicate, but the county must accept the offer.

What Happens When a Public Space Isn’t Used

Sometimes, after the developer transfers the public area shown on the subdivision plat to the HOA, but the area is never used. And often, the HOA fails to pay taxes. When this happens, the county will have a tax sale and sell the property.

As mentioned above, each lot owner obtained a right to use the public area when they purchased their lot. The right to use the public area is considered an express grant and is an unalterable property right. The rationale is that the price of the lots included the use of the public areas. This principle is true even if the lot owners have never used the public space.

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If you have questions about a subdivision plat or property rights, call us at 404-382-9994 to speak with an attorney.

Georgia Homeowner Possibly Liable for Fireworks Injuries

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In a recent appeal, fireworks at an annual Fourth of July party injured an eight-year-old girl. The young girl’s parents sued the homeowners for the resulting injuries from the fireworks display. Harbin v. Ritch, A22A0670 (2022). The trial court threw the case out. The trial court believed that the child should have known of and avoided the danger. The child’s parents appealed, and the Court of Appeals reversed (meaning they disagreed with the trial court).

Homeowner’s Responsibilities

At issue was whether the parents who threw the Fourth of July party could be held responsible for the injuries caused by the fireworks.

The Georgia Court of Appeals explained a homeowner might be responsible if: (1) they knew of the dangerous condition, (2) the guest was unaware of the dangerous condition, and (3) they failed to make the condition safe.

In this situation, there was a history of prior problems with fireworks injuries during the Fourth of July parties. In addition to prior issues, the testimony was that most of the adults at the party were drinking, including the homeowners. Finally, the homeowners had not made any effort to supervise the fireworks.

Most often a Court will not hold a homeowner liable if the injury was an accident. But if the homeowner was intoxicated and was acting irresponsibly, then a Court can hold such a homeowner liable.

A Jury Must Decide on Damages for the Fireworks Injuries

Because of the history of drinking and lack of supervision, the Georgia Court of Appeals ruled that a jury must decide if the homeowner was responsible the fireworks and the young girl’s injuries. Even though the young girl and her parents knew of the fireworks at the party, the Court decided that an eight-year-old girl could not understand the risk of being injured.

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If you or a family member are injured, call us at 404-382-9994 to make an appointment to discuss your case.   

Boundary Disputes in Georgia

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Unfortunately, neighbor disputes over boundary lines are common. These disputes often involve the placement of driveways, garages, and fences. These disputes are serious because they create uncertainty, expose property owners to potentially adverse outcomes, and falling out with your neighbor is unpleasant and stressful.

Legal Descriptions

When boundary disputes arise, a property owner must first determine what property belongs to them and what property belongs to their neighbor. Each time a property is sold, the seller gives the buyer a deed. The deed is supposed to include a “legal description” that describes the property’s boundaries. Unfortunately, sometimes legal descriptions lack enough detail to accurately know where the boundaries are. And even when the legal description is sufficient, unless the property already has surveyor pins or other permeant markers, it is not easy to know the exact boundaries.

Surveys

Usually, a boundary survey from a licensed surveyor is required when a boundary dispute occurs. In these situations, a licensed surveyor reviews the real estate deeds, comes out to the property, physically measures the property, and installs pins to mark the boundaries. Based on the surveyor’s research and physical examination, the surveyor creates a written diagram that visually shows boundaries, property improvements, and encroachments. On rare occasions, if the real estate deeds are unclear, a surveyor may be unable to generate an accurate survey. Also on rare occasions, one surveyor may disagree with another surveyor.

Encroachments

When there is disagreement regarding an encroachment or an alleged encroachment, you should consider calling an attorney. If a property owner does not resolve these disputes, they may lose land or be liable for damages for trespass, including punitive damages and attorneys’ fees. And, an owner may be forced to incur the expense of removing a fence or tearing down an improvement. All of these outcomes are expensive and often preventable with good legal representation.

What to Do If You Have a Boundary Dispute

1. First and foremost, regardless of whether you think you know where the boundaries are, get a surveyor to check and confirm. This is especially true when you buy a property or make improvements (for example, installing a fence).

2. If the surveyor cannot establish the boundaries (because the legal description is insufficient) or there are two surveyors who disagree, you should attempt to enter into a written boundary agreement with your neighbor.

3. If you still do not see eye to eye with your neighbor, consult with an experienced real estate attorney. There are many nuances to boundary disputes, such as adverse possession, whether a prior fence has established a new boundary line by acquiescence, oral agreements, and other agreements by prior owners that may be binding (“run with the land”). An experienced real estate attorney can guide you through these issues, ultimately saving you money, improving your odds of a positive outcome, and alleviating unnecessary stress.

Call Us

We are available at 404-382-9994 to discuss any questions you may have concerning a boundary dispute.

Georgia Tax Deed Foreclosures

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Who Gets Notice of a Tax Deed Foreclosure?

To determine who to serve with a Notice of Foreclosure to Redeem (also called a “barment”), the first place to look is the statutes dealing with tax sales. OCGA § 48-4-45 says that after 12 months from the date of a tax sale, the purchaser may start a tax deed foreclosure (foreclosure of the right to redeem) by sending notices to the owner of the property at the time of the tax sale, the occupant of the property, and all persons with a recorded right, title, interest, or lien upon the property.

Two additional parts of OCGA § 48-4-45 are important to understand. First, notice does not need to be provided to a person with no recorded interest in the property. And second, if the owner of the property at the time of the tax sale is deceased, the tax deed purchaser must serve the deceased’s heirs.

What is a Recordable Interest?

You may have heard the expression “title to property.”  Georgia counties maintain real estate records for each property in the county. Accordingly, paperwork related to the property is “recorded” with the county when a property is purchased or sold. This paperwork helps determine who owns the property.

Similarly, a creditor will record a lien on the real estate records against the property if a person borrows money or owes a debt. These records are available to the public. Tax deed purchasers are responsible for notifying all persons with a recorded interest in the property.

Tyner v. Edge

The above seems simple enough, but as is often the case with most laws, there are gray areas. Including tax deed foreclosures. Tyner v. Edge, 843 S.E.2d 632 (2020), is a good example of a case that is in the grey area. In that case, Robert Tyner purchased a property from Frances Cowart without any paperwork. Tyner paid in full for the property, but Cowart died before transferring title to Tyner.

Tyner failed to pay taxes year, and the county sold the property to The Edge Company Family LLC at a tax sale. A year after the tax sale, Edge sent out barment notices in compliance with OCGA § 48-4-45. When Edge sent the barment notices, Tyner did not have a recorded interest in the property.

A lawsuit resulted. Tyner claimed he should have received the barment notice. In hindsight, this was a pretty straightforward case. OCGA § 48-4-45 does not require notice to a party with no recorded interest, and therefore the Georgia Court of Appeals ruled that Edge did not have to send a barment notice to Tyner.

Call Us!

Please call (404) 382-9994 to speak with an attorney about your tax deed questions.