Georgia tax deeds: What if the delinquent taxpayer is deceased?

Posted by Jeff on

When a property owner dies, often taxes go unpaid, and the property gets transferred at a tax sale. This typically happens when a property owner dies without close family or when the decedent’s family thinks it’s too much hassle taking over the property (maybe the property is in bad shape or there is little equity).

As every good tax deed purchaser knows, 366 days after the tax sale, notices to terminate the right to redeem can be sent out. But who do you send these to when the main person entitled to redeem, the homeowner, is dead.

O.C.G.A § 48-4-45 answers this question and instructs that “heirs of any deceased owner of any land entitled to notice pursuant to this Code section shall be served by the sheriff or notified as provided in this article.” Ok. So if the former owner is deceased, you are required to serve his or her heirs. Seems simple enough, but how do you determine who the heirs are?

In our office, we start by getting the death certificate of the deceased individual. This tells us where the decencent was living and (normally) provides information regarding at least one family member. We then contact family members to determine the heirs. As you can imagine, family members aren’t thrilled to talk to an attorney’s office who’s trying to “take property away from” a loved one recently passed. However, after explaining the situation, we usually get the family members to help us.

We also check the probate courts to see if the dead person has an estate and had a will. If so, we get the probate paperwork. If the person died intestate (without a will), then we follow Georgia statutory intestate rules to determine the heirs, and try to get “affidavits of descent” from family members. These affidavits help establish who the decedent was married to, the identity of the children, and so forth.

This can be a lot of work. In one case, we had an elderly decedent who died without a will, wasn’t married, and had had nine children. Several of those children had passed, meaning several of the grandchildren were heirs. We ended up having to locate and serve approximately 19 heirs spread all over the country.

If you need to send out notices of foreclosure of right to redeem in Georgia, and are facing a similar situation, we’ll be happy to discuss your situation and answer any questions. Please call us at 404-382-9994.

Wrongful Eviction in Georgia

Posted by Jeff on

[We apologize, but our office no longer accepts tenant wrongful eviction claims. If you are a tenant, please contact Georgia Legal Aid at www.georgialegalaid.org or the Atlanta Volunteer Lawyers Foundation at https://avlf.org/get-help/evictions/.]

There is a lot of confusion regarding evicting a tenant and wrongful eviction. One question is the amount of damages a tenant is entitled to if wrongly evicted. The issue was addressed recently by the Georgia Court of Appeals in Hart v. Walker, 347 Ga. App. 582 (2018). In that case, the landlord wrongfully evicted the tenant by changing the locks when she and the tenant got into a dispute.

If you’re a landlord, please don’t do this—in almost all instances, a landlord in Georgia must file an eviction in court to deprive a tenant of possession. Georgia is not a self-help state.

In the Hart case, the tenant sued the landlord claiming wrongful eviction and damage to personal property. He also claimed out-of-pocket expenses. The trial court ruled that although the tenant was wrongfully evicted, the tenant wasn’t entitled to recover damages against the landlord. The appeals court agreed. At trial, the tenant’s expert testified to the fair market value of the items, but the tenant couldn’t convince the trial court that he owned the items in question. The appeals court explained that the trial court could consider the credibility of a witness and, if the witness isn’t credible, can reject the witness’ testimony. Here, the trial court didn’t believe the tenant that he owned the items in question. Regarding the tenant’s out-of-pocket expenses for food and a motel, the appeal court noted that the tenant would have to incur such expenses regardless of the wrongful eviction. Therefore, these damages were too remote.

While this case addressed damages, as a landlord, if there’s a takeaway from this blog, it is that changing the locks wrongfully evicting a tenant isn’t the way to go. The landlord, in this case, was fortunate that the tenant could not recover significant damages.

Tax Deed Titles in Georgia

Posted by Jeff on

If you’ve purchased a tax deed in Georgia, how do you obtain a clear tax deed title, i.e., marketable title? That’s a question we get frequently. First and foremost, following a tax sale, you need to bar the right of redemption of the owner who didn’t pay taxes and any party who holds an interest in the property. We have covered this topic in other blogs on this website. But what about after you’ve barred the right to redeem? Are you able to put up a for sale sign and sell the property?

Generally, the answer is no if there’s a non-judicial tax sale on the property within the past 20 years. In other words, most title insurance companies won’t title insure such properties. So what do you do? There are generally three ways to obtain full title or what is known as “marketable title.”

The first way is to adversely possess the property for more than four years. Adversely possessing means taking full possession of the property in a manner that is (i) hostile (against the right of the true owner and without permission); (ii) actual (exercising control over the property); (iii) exclusive; (iv) open and notorious (using the property as the real owner would, without hiding occupancy); and (v) continuous.

The second way is to get a quitclaim deed from the owner who didn’t pay taxes and any party with an interest in the property.

The third way is to file a quiet title action in the Superior Court where the property is located. In such a lawsuit, the owner who didn’t pay taxes and any party with an interest in the property are named and allowed to object. A special master is appointed and ultimately the cour will issue an order clearing title. The order is recorded on the public record and the process is complete.

Please call us with any questions regarding tax deeds or the above methods of obtaining marketable title.

Medical Malpractice Affidavits: Causation

Posted by Jeff on

A recent appellate case provides a cautionary tale for persons making a claim for injuries due to medical malpractice. Edokpolor v. Grady (A16A1031, decided 9/14/2018) is a recent medical malpractice case that was thrown out of court because the injured party’s expert affidavit was deficient.

In Georgia, negligence claims against professionals such as doctors, lawyers, and engineers require  an expert affidavit verifying the wrongdoing. This affidavit is a mandatory requirement in all malpractice claims in Georgia.

For example, in a malpractice claim against a doctor, the affidavit must be from another doctor who practices the same type of medicine and the affidavit must state that culpable doctor’s treatment of the injured patient fell below the standard of care for similar doctors; importantly, the affidavit must also explain how the alleged negligence caused the injury to the patient.

In Edikpolor, the patient reported to Grady Memorial Hospital with cardiac disease and other issues. After spending 30 days in the hospital, the doctors determined the patient needed a colonoscopy. To prepare for the examination, the doctors ordered that bowel preparation medicine be administered to the patient via a feeding tube. Contrary to these instructions, the nurses administered the medication by mouth. The patient allegedly choked on the medication, which caused fluid to enter her lungs, and she died several weeks later as a result.

The patient’s family sued the hospital, which included a malpractice affidavit from another doctor. The affidavit stated that the nurses were negligent in not following the doctor’s order to use a feeding tube, and that the negligence was the cause of the patient’s death.

The problem in this case is that the affidavit was ruled inadequate because it didn’t explain how and why feeding fluid by mouth is more risky than feeding through a tube. On the other hand, the hospital introduced a contradictory expert affidavit, which stated that choking could occur whether taken by mouth or feeding tube because  what happens is the liquid ends up in the stomach and is then regurgitated into the throat; it is at this point when the liquid is inhaled into the lungs. In other words, administering the fluid by mouth was not necessarily the cause of the injuries.

This case shows that “[a] plaintiff must show that the purported violation or deviation [by the medical professional] is the proximate cause of the injuries sustained. He must prove that the injuries complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. There can be no recovery where there is no showing to any reasonable degree of medical certainty that the injuries could have been avoided.”

It’s easy to be critical after the fact, but the case underscores that not only must you show negligence, but you must be able to show with relative certainty that the negligence caused the injuries.

Can a tax commissioner apply excess funds to post-tax sale property taxes?

Posted by Jeff on

Iglesia Del Dios Vivo Columna Y Apoyo De La Verdad La Luz Del Mundo, Inc. v. Downing, 321 Ga. App. 778 (2013) addressed this issue, and the answer, quite simply, is NO. (Bonus points for being able to say the plaintiff’s name in that case three times fast.)

The guiding statute is O.C.G.A. § 48-4-5, which provides that any excess funds existing “after paying taxes, costs, and all expenses of a sale made by the tax commissioner” shall be distributed “to the owner or owners as their interests appear in the order of priority in which their interests exist.”

So, while a tax commissioner is authorized to apply excess funds to satisfy outstanding property taxes owed by the delinquent taxpayer that accrued before the tax sale, it can’t do so after the tax sale. This reasoning for this is that the tax deed purchaser, not the delinquent taxpayer, is liable for post-tax sale property taxes.

What about a situation in which post-tax sale property taxes accrue before the tax deed purchaser has barred the right of redemption? In this situation, the delinquent taxpayer still has possession and the tax deed purchaser doesn’t have full title. Is the delinquent taxpayer jointly liable with the tax deed purchaser? According to the Downing case, the answer is no.  Only the tax deed purchaser is liable for post-tax sale property taxes; this is regardless of whether the right to redeem has been barred.