Category: Tax Sales

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.

Call Us!

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

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.

Call Us!

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.

Quiet Title Actions In Georgia

What is a quiet title?

A quiet title is a real estate lawsuit filed by a property owner in Superior Court. Property owners file quiet title actions to either (1) remove “clouds” on their title (conventional) or (2) establish that they, and no one else, own the property in question (statutory).

What is a Cloud on Title?

A cloud on a title means a possible adverse interest in real estate. In most situations, property owners cannot refinance or sell a property with a clouded title.

When Should You File a Quiet Title?

Many times, when property owners attempt to refinance or sell their property, the process grinds to a halt when they find out that there is a cloud on their title. While a closing attorney can sometimes fix a cloud on the title with additional paperwork, some situations cannot be resolved without a quiet title.

A forged deed is an example of a cloud on a title. See, e.g., Vatacs Grp., Inc. v. U. S. Bank, N.A., 292 Ga. 483, 485 (2013) (forged deed). Open security deeds (mortgage loans that have not been marked as paid) also cloud a title and must be cleaned up before a refinance or sale is possible.

Other situations that require a quiet title are (1) heir property not formally transferred from the decedent to the heirs; and (2) boundary line, encroachment, easement, and trespass claims.

Tax Deeds and Tax Sales

Real Estate owners also file quiet titles “against all the world.” These quiet titles are all-encompassing and are required in certain situations, such as following a tax sale.

Filing a Quiet Title Action in Georgia

At Gomez & Golomb, we regularly file quiet title actions for real estate owners. Whether you’re trying to get a marketable title following a tax sale or trying to clear up a clouded title, the filing party must own/hold title, and there must be a cloud against the filing party’s title.

Conventional Quiet Titles: Getting Rid of a Specific Claim or Interest

An action for a conventional quiet title is an equity case and must be filed per the venue provisions of the Georgia Constitution. Thus, it must be filed in the county of residence of one of the named defendants. In a conventional quiet title action, the named defendants are served. Then discovery proceeds as in any civil case. And the case is ultimately presented to the judge for a final hearing. As in other equity cases, “there shall be no right to a jury trial.” OCGA § 23-3-43.

Statutory Quiet Titles: Against All the World

A statutory quiet title action is not only against the adverse claimants. But an action in rem against the land itself. OCGA § 23-3-62 provides that it is a proceeding in rem. It shall be filed in the superior court of the county where the land is located. In a quiet title against all the world, the petition must be submitted to a special master. The Special Master examines the title, determines the interested parties, ensures the interested parties are served, holds a hearing, and issues recommendations to the court. The appointment of a Special Master is required. OCGA § 23-6-63. Once appointed, the Special Master substantially controls the course of the case.

Initially, the Special Master determines who is entitled to notice, including adjacent landowners and all adverse claimants. Known claimants must be personally served, and all “unknown claimants” are served by publication. OCGA § 23-6-65. The Special Master exercises “complete jurisdiction” over the case to ascertain and determine the validity, nature, or extent of the petitioner’s title and all other interests in the land and to remove any particular cloud upon the title to the land. OCGA § 23-3-66. The Special Master then makes a report of their findings to the judge of the court. Id.

Unlike in a conventional quiet title case, a jury trial is available. Id. Upon receiving the Special  Master’s report or the jury verdict, the court issues a decree to be recorded in the county real property records. This decree binds the land affected and is conclusive upon all claimants, known or unknown. OCGA § 23-3-67.

Need Advice Regarding a Quiet Title in Georgia

If you have any questions or wish to learn more about your rights and options, please call us at 404-392-9994.

Tax Deed Redemption: Tricks of the Trade

Redemption Process

A new Georgia appellate case, Moxie Capital v. Delmont 21 (2021), has been released that every tax deed purchaser, investor, and property owner should know about. The case involves how to redeem a property following a tax sale.

OCGA § 48-4-40 says the property owner or an interest holder in the property may redeem a property following a tax sale. Redemption must occur within a twelve-month window and after a notice of right to redeem has been provided. OCGA § 48-4-42 states how much a redeeming party must pay to redeem. Importantly, the funds required to redeem “shall be paid in lawful money of the United States.”

Redemption Dispute

In Moxie Capital, an investor attempted to redeem a property. For various reasons, the attempted redemption occurred on the last day of the redemption period. The investor contacted the tax deed holder for a payoff. There were conflicting versions of what happened from there. The investor said the tax deed holder did not cooperate; while the tax deed holder argued he had no obligation to cooperate.

What the parties don’t dispute is that the investor timely delivered a personal check to the tax deed holder. The investor claimed that certified funds were not available because the banks had closed by the time he found out the details of where to deliver the redemption amount. On the next day, the tax deed holder returned the personal check to the investor. And claimed that the investor’s right to redeem had expired.

Naturally, this went to court. While somewhat complicated, ultimately, the investor lost. And the tax deed purchaser got the property. The Georgia Court of Appeals ruled that to redeem, funds must be in the form of cash or certified check. The Court cited OCGA § 48-4-42, which says funds must be “paid in lawful money of the United States.” Although no Georgia court has clearly defined “lawful money,” the Georgia Court of Appeals reasoned that a personal check is a promise to pay. Thus, the Court of Appeals did not consider the investor’s personal check to be a payment.

The Court of Appeals also suggested that a tax deed purchaser has no obligation to act in “good faith” when responding to a party trying to redeem.

Don’t Wait Until the Last Minute – Call Us

Moxie Capital is consistent with other Georgia cases that apply redemption statutes strictly. Some would say harshly. Whether you agree or disagree with the outcome will depend on which side of the ledger you’re on.

Regardless of if you are a tax deed purchaser or a homeowner, we will be glad to represent you to get you through the process safely.

Call Us at 404-382-9991 to speak with an attorney regarding your options!