Category: Real Estate Litigation

Subdivision Plats in Georgia

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.

Boundary Disputes in Georgia

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.

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

Georgia Tax Deed Foreclosures

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.

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

Judicial In Rem Tax Sales

Recently, we have seen more judicial tax sales in Georgia. This type of sale is much different than a non-judicial tax sale. OCGA § 48-4-75. Both the procedures and the deadlines differ.

When a taxpayer fails to property taxes, a county may file a judicial-in-rem tax sale. OCGA § 48-4-78. When the county employs this type of tax sale, it files a “Petition” in the superior court. The Petition is against the property itself and anyone with an interest in the property, including the owner.

Once the county files the Petition, the county gives notice to the interested parties. OCGA § 48-4-78. The county posts the property with copies of the summons and Petition, notice to interested parties, and notice of hearing. The county also sends the documents by regular and certified mail to all interested parties. Lastly, the county publishes a legal notice in the county newspaper alerting the public. The notice runs for two weeks).

Following notice, the court holds a hearing. Any interested party has the right to be heard and to contest the allegations in the Petition at the hearing. If the superior court determines that the information in the Petition is accurate and that the county gave proper notice, the court will order the county to sell the property at an auction. OCGA § 48-4-79.

The county then advertises the sale of the property in the county’s legal newspaper for four weeks. The advertisement will show the owner’s name, a description of the property to be sold, and the amount of the tax due OCGA §§ 9-13-140-142.

Before judicial tax sale auction, an interested party may redeem the property by paying the redemption amount to the county tax commissioner. If an interested party pays the redemption amount, the county dismisses the Petition. OCGA § 48-4-80.

One of the main differences between judicial and non-judicial tax sales is that a judicial tax sale allows only 60 days to redeem (buy back the property). In a non-judicial tax sale, the owner has at least one year to redeem. OCGA § 48-4-81.

The other major difference is judicial tax sales vest title absolutely into the purchaser. In theory, this eliminates the need for post-sale barment procedures and quiet title actions. There is little case law to provide guidance, but we expect the courts to consider these issues in the future.

Surplus Foreclosure Funds

In Georgia, most foreclosures are non-judicial. Meaning that the lender does not need court approval or supervision to foreclose. Thus, most foreclosures in Georgia happen “privately.” This blog post addresses the lender’s obligations to disburse surplus foreclosure funds.

A lender who forecloses on real estate assumes the obligation of properly distributing the proceeds from the foreclosure sale. Holland v. Sterling, 214 Ga. 583, 585 (1958). The lender is entitled to apply the fund from the sale first to the costs of the sale, attorney’s fees, and the interest and principal of the secured indebtedness. OCGA § 13-4-42. If there are any surplus or excess funds, the lender must pay the surplus funds to lienholders and then to the borrower.

The lender’s interest in property exists only to the extent of the amount they are owed. Thus, the lender must account to the borrower for any surplus foreclosure funds. Palmer v. Mitchell County Federal Sav. & Loan Ass’n, 189 Ga. App. 646 (1988).

If there is a legitimate dispute to the surplus foreclosure funds, the lender can file an interpleader. An interpleader is a legal action where the lender gives the money to the court. And the court decides who is entitled to the money.

If there is no legitimate dispute regarding the surplus funds, and the lender fails to timely disburse the funds, the creditor may be liable for prejudgment interest to the party entitled to such funds. OCGA § 7-4-15. Such liability will largely depend on whether the amount of such surplus is a liquidated amount. Walton Motor Sales, Inc. v. Ross, 736 F.2d 1449 (11th Cir. 1984).