Tag: quiet title

Georgia Case Regarding Lis Pendens and Slander of Title

Understanding Lis Pendens in Georgia Real Estate Law

A lis pendens is a legal notice recorded in the county where a property is located, alerting the public that a lawsuit has been filed involving that property. It serves to notify prospective buyers or lenders that the property is the subject of litigation and that the outcome may affect any interest they acquire. In Georgia, the controlling statute is OCGA § 44-14-610.

Crucially, a lis pendens cannot be based solely on a claim for monetary damages. Its function is to warn that the lawsuit seeks specific relief affecting the property itself. As explained in Evans v. Fulton Nat’l Mtg. Corp., 168 Ga. App. 600, 309 S.E.2d 884 (1983), the litigation must involve a direct interest in the property for a lis pendens to be valid.

Example

If a fraudulent deed is recorded, and the rightful owner files suit to challenge it, the owner can also record a lis pendens. This ensures any would-be buyer is on notice of the dispute. Should a buyer proceed with the purchase despite the notice, they are bound by the lawsuit’s outcome and could lose the property if the plaintiff prevails.

Case Study: Spinola v. Akaranta

In this recent decision, Spinola sued her neighbor, Akaranta, claiming that a water leak from Akaranta’s condominium caused damage to her own unit. Spinola sought monetary damages and also requested an injunction to prevent Akaranta from selling her unit. She recorded a lis pendens against Akaranta’s property to notify potential buyers of the ongoing litigation.

Akaranta counterclaimed, asserting that the lis pendens was improperly filed and had defamed her title, causing a sale to fall through and preventing her from purchasing another property. Initially, the trial court declined to cancel the lis pendens, based on weak property-related claims by Spinola (such as the assertion of a constructive trust). Although the court later reversed that decision and ruled the lis pendens improper, the initial ruling gave Spinola leverage, despite her ultimately admitting that her claims only involved damage to her own unit.

At trial, the jury found that Spinola had wrongfully filed the lis pendens, harming Akaranta by interfering with the sale of her property. The jury awarded damages and attorney’s fees to Akaranta.

However, the Georgia Court of Appeals reversed the verdict. The Court held that, under OCGA § 51-5-8, statements made in connection with judicial proceedings—including those in recorded documents like a lis pendens—are privileged if they are pertinent to the relief sought, even if ultimately found to be false or unsupported. Because Spinola’s lis pendens was filed as part of a legal proceeding and related (at least nominally) to property claims, it was protected by this statutory privilege. As a result, it could not form the basis for a slander of title or defamation claim.

Legal Takeaway

To prove slander of title under OCGA § 51-9-11, a plaintiff must show the publication of false, malicious statements that caused special damages. But when the statement is protected by privilege—as with a lis pendens filed in a pending lawsuit—it cannot support a defamation claim, regardless of the filer’s intent or the document’s eventual rejection by the court.

In Spinola, the effect was that although the jury determined the lis pendens was improperly recorded and caused real harm, the damages were overturned due to the legal protections afforded to court-related filings. The case underscores the importance of correctly filing a lis pendens and understanding the legal privileges attached to litigation-related documents.

Questions?

If you need legal guidance about lis pendens or any related real estate dispute, don’t hesitate to contact our office at (404) 382-9994.

Property Fraud in Fulton County, Georgia

We have written about property fraud prevention before. As you may know, anyone can go down to the courthouse and record a deed that could significantly impact your property. Sometimes, you may have to file a quiet title action to cancel or get rid of the fraudulent deed. A quiet title is a lawsuit that can cost several thousand dollars. Fulton County has initiated a new tool to help those who own real estate in Fulton County. It is called COSMC – R.E.A.A.C.T. I know, a mouthful. At least part of that stands for Real Estate Activity Alert and Contact Tool.

You can go to the Fulton County Clerk’s website to register and create an account. Once an account is created, you can identify your properties in Fulton County. In theory, if there is activity regarding your property, you will receive an alert by text or email.

While registering your property will not necessarily stop someone from filing a fraudulent deed, at least you will have notice. Many folks do not find out about fraudulent deeds until they try to refinance or sell their property. Believe us, it is no fun having your house under contract but, just before the scheduled closing, finding out from a buyer that there is a problem with your title.

We encourage you to take advantage of this free service offered by the Fulton County Superior Court Clerk’s Office.

Quiet Your Title Worries: Overview of Marketable Title in Georgia

Owning property in Georgia is a dream for many, but title issues can turn that dream into a nightmare. If you’re facing a cloud on your title – a potential claim that could prevent you from selling or refinancing your property – a quiet title action can be the solution.

Marketable Title

Marketable title is a legal term that refers to a property title free from any claims or disputes that could reasonably be expected to affect its value or ownership. In essence, it’s a title that a prudent buyer would be willing to accept.

What is a Quiet Title Action?

A quiet title action is a lawsuit allowing you to clear up doubts about the property’s rightful owner. By filing a quiet title lawsuit, you’re asking the court to declare you the owner and “quiet” any challenges to your title.

Types of Quiet Title

There are two types in Georgia: (1) conventional and (2) against all the world. Conventional is used when you must cancel a particular deed that is clouding your title. Against all the world is used when unknown persons may own your property. An example of a conventional type is if someone filed a fraudulent deed against your property, while an example of an against the world type is if you find out the person who sold you your property did not have full title; if you can’t find that person, you must file a quiet title against all the world.

Why Would I Need a Quiet Title Action in Georgia?

You might need a quiet title action in Georgia for several reasons. Here are a few common ones:

  • Heir Property: If you inherited property and there are questions about the validity of the will or the rights of other heirs, a quiet title action can help solidify your ownership.
  • Boundary Disputes: Unsure exactly where your property line ends? A quiet title action can help establish the legal boundaries of your land.
  • Tax Sales: A quiet title action is normally needed to clear the title following a tax sale.
  • Errors in Public Records: Mistakes on deeds or other public records can create clouds on title. A quiet title action can correct these errors.
  • Fraudulent Deeds: If someone fraudulently (or unintentionally) records a deed that shows up in your chain of title (the deeds that show you own the property, a quiet title is needed.
  • Uncancelled Loans: If you use your property as collateral to get a loan (i.e., a mortgage), the lender places a security deed on your property. Once you pay off the loan, the lender is supposed to cancel the security deed. Sometimes, for various reasons, the lender fails to cancel the security deed. For example, if a lender goes out of business, there may be no one to cancel the security deed.
  • Gaps in Ownership: When you sell your property, an attorney may call you to say that there is a gap in your ownership. For example if A sells to B and B sells to C, but you got your property from D, you have a title problem problem becuase you need a deed from C.

The Benefits of a Quiet Title Action in Georgia

A successful quiet title action provides several benefits:

  • Peace of Mind: Knowing your title is clear lets you relax and enjoy your property.
  • Increases Property Value: Properties with marketable title are more valuable than those with title issues.
  • Marketability: Without a clear title, you will likely be unable to sell your property.
  • Loan Approval: A clear title is essential for loan approval if you want to refinance your property.

The Quiet Title Process in Georgia

  1. Consult with a Real Estate Attorney: An experienced attorney can advise you on whether a quiet title action is right for you and guide you through the process.
  2. File a Lawsuit: The attorney will file a petition with the Superior Court in the county where the property is located.
  3. Serve Notice: The court will require that all potential claimants be served with the lawsuit.
  4. Special Master Appointment: In a quiet title against all the world, and sometimes in a conventional quiet title, the court will appoint a special master to investigate the claims and make recommendations.
  5. Court Hearing: The court or the special master will hold a hearing to determine property ownership.
  6. Judgment: The court will issue an order declaring the rightful owner. This order will then be filed on the county’s real estate records. Recording the court order gives you clear title.

Get Help With Your Quiet Title Action in Georgia

If you’re facing a cloud on your title in Georgia, don’t hesitate to seek help. We can advise you on your best course of action and ensure a smooth and successful quiet title process. Call us at 404-382-9994.

Quiet Title, Adverse Possession, and Color of Title

The title of this blog encompasses three differing but often overlapping areas of Georgia law. The Georgia Court of Appeals decided a case involving all three: quiet title, adverse possession, and color of title. See Brownphil, LLC v. Cudjoe, __ Ga. App. __ (March 14, 2024, A23A1762).

To understand the case, we have to quickly review the title history. The property was obtained by Earnest and Louise McClendon in 1958. They conveyed their interest to Grier Construction Company (owned by Freddie Grier). In 1997, Freddie Grier—not Grier Construction—conveyed the property to Cudjoe. Brownphil got involved when he got a quitclaim deed from Earnest and Louis McClendon’s heirs.

Brownphil filed a quiet title action to clear the title of the property, claiming that Cudjoe did not have an interest in the property because Grier Construction was not incorporated at the time it received the property from Earnest and Louise McClendon and because Freddie Grier—the party that granted the property to Cudjoe—was never on the title. Cudjoe argued that he obtained full title by adverse possession.

Interestingly, the special master appointed to the case sided with Brownphil. But, after a hearing, the trial court ruled in favor of Cudjoe.

An appeal followed in which Brownphil argued that Cudjoe had not done enough to establish adverse possession. After receiving a deed from Freddie Grier, Cudjoe paid the property taxes and mowed the lawn. Brownphil argued that paying taxes and lawn mowing are insufficient to gain title by adverse possession.

After reviewing the facts and prior cases, the Georgia Court of Appeals ruled in favor of Cudjoe. The Court of Appeals cited the legal doctrine of “color of title” as the main reason for favoring Cudjoe. Color of title means that someone has a writing (usually a deed) that appears to grant them title. When someone has color of title, importantly, they only have to show seven years of adverse possession and the element of “notoriety” usually required for adverse possession is waived. Notoriety means placing the world on notice that you adversely possess the property. Only having to show seven years and not having to establish notoriety makes it much easier to display adverse possession.

Based on this easier standard, the Court of Appeals found that Cudjoe had shown enough to obtain title to the property through adverse possession.

If you have any questions regarding a quiet title, adverse possession, or color of title, please call us at 404-382-9994.   

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.