A No-Brainer (and Free!!) Way to Prevent Real Estate Fraud in Georgia

Real Estate Fraud in Georgia

Real estate fraud in Georgia is alive and well. Folks filing fake real estate deeds in Georgia are common. And if you have ever encountered a sovereign citizen, you may have seen some interesting paperwork recorded on Georgia’s public record. Once an improper deed is recorded against your property, it is not always easy to remove and may require filing a quiet title action.

One easy way to combat real estate fraud in Georgia is to register your name with the Georgia Superior Court Clerks Cooperative Authority (“GSCCCA”). These days, most Georgia real estate deeds and documents are recorded using GSCCCA’s online portal. So, to combat fraud, the GSCCCA created a webpage titled the Filing Activity Notification System.

Filing Activity Notification System (a/k/a “FANS”)

To prevent real estate fraud, FANS is a system that allows individuals in Georgia to sign up and receive notifications whenever real estate and personal property records are filed, indexed, and transmitted by Clerks of Superior Court. You can get notifications for all Georgia counties or you can select just one county. So, for example, if someone files a fraudulent quitclaim deed in Bartow County using your name, you will get notified by email or text.

You can opt-in to this system by creating a notification request, which will send an email or text whenever a document in select official county records is filed and index data is entered and transmitted to the GSCCA by the Clerk. The system matches the notification criteria you set up when you register. Notifications are generated for a document filed and index data only for your established parameters.

Notifications

Notifications generated by the system depend upon the index data entered and transmitted by the Clerk of Superior Court in the county of filing. Therefore, it’s not guaranteed that the notices generated by this system will be comprehensive, but it costs nothing and is, therefore, a no-brainer to sign up. With being notified, you may completely unware of the real estate fraud.

Obviously, this system may not work well for you if your name is John Smith. But if your name is less common, like this blog’s author, this system is a great way to protect your real estate proactively. Even if your name is more common, you can limit the counties to only those where you own real estate.

Subdivision Easements in Georgia

Georgia Law Regarding Subdivision Easements

Georgia law grants subdivision homeonwers easements regarding certain features identified on subdivision plats, including streets, parks, and lakes. Such designations on a plat conveys an intent by the original developer to grant an easement to all lot owners in a subdivision.

Tucker v. Brannen Lake East

The Georgia Court of Appeals looked at this issue in Tucker et al. v. Brannen Lake East, LLC, A23A1265 (January 29, 2024). In Tucker, the dispute involved use of a lake in a subdivision. A homeowner purchased a lot in the subdivision next to a lake. At the time of purchase, neither the deed to the buyer, the subdivision plat, nor the lot survey showed any restriction related to use of the lake. After purchase, the homeowner used the lake with no issues until the lake owner (another property owner) told the owner that he could not use the lake.

The lake owner claimed an earlier deed to the homeowner’s property contained what is called a “restrictive covenant.” A restrictive covenant is language in a deed in which the seller limits the purchaser’s future use of the property. Here, the lake owner claimed that an earlier deed restricted use of the lake.

Court Decided Homeowner Could Use Lake Despite Alleged Restrictive Covenant

The Court of Appeals confirmed that Georgia law has long recognized that when a developer conveys lots concerning a subdivision plat, the buyers may receive easements in certain features—mostly streets and parks—designated on the plat. Usually, identifying an easement on the subdivision plat is enough, absent contrary evidence in the plat or deed, to grant an easement in the features to lot owners who bought with reference to the plat. Examples are streets, parks, and lakes (which are treated similarly to parks). So if a subdivision plat shows a park, arguably, everyone in the subdivision has an easement to use the park.

The Court explained that:

These features share two things in common with the first being that there is simply a well settled understanding, reflected in more than a century of our decisions, that when these basic features are designated on a subdivision plat, there is ordinarily no reason to doubt that they are included as part of the unified plan for the subdivision and meant for the lot owners’ use. Second, and equally important, these are the sort of features for which designation or delineation on the plat alone can give reasonable certainty about the scope of the easement granted. Simply put, settled expectations rooted in more than a century of practice and the relative ease with which the scope of an easement in these features can be discerned support a strong presumption that designating these features on a subdivision plat conveys an intent to grant an easement to lot owners who buy with reference to the plat.

(citation and punctuation omitted).

The guiding principle in the case is that with regard to restrictive covenants, the “legal presumption is in favor of the free use of the property by its owner, and any doubt will be construed in favor of the owner.” The Court examined the actual restrictive covenant in the earlier deed and determined that the deed had contradictory language. Therefore,

the seemingly contradictory language between the October 21, 1993 deed and the Summary of Conditions and Restrictions as to the property subject to those conditions and restrictions cannot justify terminating Tucker and Marsh’s use of the lake—especially in light of the Brannen Lake subdivision plat explicitly referenced in their 2015 deed.

If you have any questions about subdivision easements or restrictive covenants, call us at 404-382-9994 to discuss.

In Georgia, Parol Evidence Admissible When Deed States”Other Valuable Consideration”

If you have bought or sold real estate in Georgia (and elsewhere), you have certainly seen the “purchase price” described in most deeds as follows:

Grantor, in consideration of One Dollar ($1.00) and the purpose recited herein, in hand paid at and before the sealing and delivery of these presents, the receipt of which is hereby acknowledged, by these presents does remise, convey, and forever QUITCLAIM unto said Grantee, the below described tract or parcel of land more fully and completely described as follows …

But what does “For value received” or “Ten dollars and other valuable consideration” mean, why is it used, and why isn’t the actual purchase price included in the deed? The nominal amount of one dollar (or ten dollars) is included to satisfy the consideration requirement to make a deed enforceable. Consideration means payment: one dollar or ten dollars satisfies this consideration requirement. The author has looked into why this is done and believes buyers and sellers use this language to conceal the price paid for the property on the public record. These deeds are recorded and available to the public. Using one dollar or ten dollars as the purchase price makes it more difficult to know the actual purchase price. Although the transfer tax can often determine the purchase price, this is not foolproof and adds another layer for an inexperienced examiner. Regardless of why it’s done, this language is used in virutually all deeds, including quitclaim and warranty deeds.

This issue came up recently in an interesting case. Please see Schaffer v. Collinsville Meadow Townhomes, A23A1382 (January 24, 2024). In that case, a seller quitclaimed his interest in property for “One Dollar ($1.00) and other valuable consideration, receipt whereof is hereby acknowledged.” Of course, a dispute arose, which included the seller claiming he had not been paid for conveying the property via the quitclaim deed.

The issue relevant to this blog was whether the seller could sue the buyer for nonpayment when the quitclaim deed did not include an actual purchase price. The Court of Appeals ruled that because the deed included the language “other valuable consideration,” the seller could introduce evidence outside the quitclaim deed to establish the purchase price. Such outside evidence is known as parol evidence. Succinctly stated, the Court explained that

As our Supreme Court has explained, the manner in which consideration is expressed in the quitclaim deeds [the seller] conveyed is a classic example of consideration merely by way of recital; and as a result, the details of such consideration are properly subject to further inquiry.

If you have any questions or are in a dispute regarding a real estate deed in Georgia, please get in touch with us at 404-382-9994 to discuss.

Adverse Possession: How To Meet the “Public” Requirement

To establish an easement by prescription, the party making such a claim has the burden of proof. The elements of prescription are (1) possession that is in the right of the party claiming possession and not another,  (2) possession that is public, continuous, exclusive, uninterrupted and peaceable, and (3) possession accompanied by a claim of right. OCGA § 44-5-161. Possession of property in conformance with these elements for 20 years confers good title by prescription to the property. OCGA § 44-5-163.

In a recent case, Talboy v. Dukes (__ Ga. App. __, October 4, 2023; A23A1068), the Georgia Court of Appeals examined the definition of “public” possession. The dispute in question revolved around an underground sewer line that extended into an adjacent property. The Court determined that the party seeking an easement could not establish public possession since the sewer line was underground and therefore not visible to the public.

In order to determine the meaning of “public“, the Court looked up its definition in the dictionary. According to Black’s Law Dictionary, the term “public” encompasses the definition of “notorious”. “Notorious possession” is defined as a type of possession that is so visible that it is generally known and discussed by the public or people in the surrounding area. Possession or the act of holding something that has such noticeable features that the owner may be presumed to have knowledge of it and its scope. This definition was taken from the 6th edition of Black’s Law Dictionary, published in 1990.

Applying this definition to adverse possession, the Court reasoned that the claimant could not show that the property was “so conspicuous that it is generally known and talked of by the public or the people in the neighborhood” or had “such elements of notoriety that [the Claimant] may be presumed to have notice of it and of its extent.”

The law regarding obtaining title to land by adverse possession can be abstract and confusing, but Talboy provides clarity regarding how to apply the requirement of public possession in the real world. Please call us at 404-382-9991 to discuss any questions you have about an easement or adverse possession.

Private Ways in Georgia Require Seven Years of Adverse Use

Private ways in Georgia are a type of easement that permit individuals to travel to and from their property and places of business. These ways cannot be wider than 20 feet, and the person claiming the private way is responsible for keeping it open and in good condition. This information is based on OCGA 44-9-40.

Thus, if you use a path through someone’s land for seven years straight, you may have the right to use it even if it’s not yours. This is called a private way by prescription, based on OCGA § 44-9-1. If the owner of the land obstructs your path, you can take them to court under OCGA § 44-9-59(a) to have the obstruction removed. However, if the owner gave you permission to use the path , you cannot acquire the right to use the path by prescription. The owner must be informed that you are making a hostile claim to their property and must be given actual notice of your adverse use. See Douglas v. Knox, 232 Ga. App. 551, 552 (2) (1998).

If your neighbor gives you permission to use their driveway, it’s important to remember that they have the right to revoke that permission at any time. In legal terms, this means that using your neighbor’s driveway with permission does not create a private way. A recent court case, Pineda v. Lewis (__ Ga. App. __, October 4, 2023, A23A0909), reaffirmed this principle.

To create an private way, you must give your neighbor notice that your use is adverse. This is true even if you make repairs to the driveway with your neighbor’s consent.

The bottom line is that traveling over a neighbor’s property with permission does not create a private way by prescription. If you have questions regarding your property rights concerning a neighbor, please call us at 404-382-9994 to discuss.