Tag: tax sale

Subdivision Plats in Georgia

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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

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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

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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.

Tax Deed Redemption: Tricks of the Trade

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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!

How To Successfully Foreclose the Right to Redeem Following a Tax Sale

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Tyner v. Edge, which was decided by the Georgia Court of Appeals on May 22, 2020 (A20A0265), provides guidance on the process of foreclosing the right of redeem following a tax sale.

The court clarifies several aspects relating to properly barring the right to redeem:

(1) With regard to foreclosure of the right to redeem, Georgia law holds that a party who owns “any right, title, or interest in or lien” on the subject property is entitled to redeem (see O.C.G.A. § 48-4-40). Therefore, because of the word “any,” even a party with an unrecorded interest is entitled to redeem a property lost at a tax sale.

(2)  A party’s failure to record its interest does, however, have consequences because the holder of an unrecorded interest is not entitled to get a notice of foreclosure of the right to redeem. See OCGA § 48-4-45(a)(1)(c) and Freeman v. Eastern Sav. Bank, 271 Ga. 439, 440 (1) (520 SE2d 902) (1999). This means a tax deed holder can successfully bar the right to redeem without notifying persons or entities not in the chain of title. For this reason, a title search and careful examination of the title search is necessary in all cases.

(3) Regarding service by publication, the court confirmed that if the name and address of an interested party can be reasonably ascertained, notice of a tax sale by publication does not meet the requirements of due process. Hamilton v. Renewed Hope, Inc., 277 Ga. 465, 466 (589 SE2d 81) (2003). Consequently, tax deed holders must make a reasonable effort to locate all interested parties to successfully complete a barment, and cannot simply rely on publication.

(4) Payment of taxes, in and of itself, does not create an interest in property sufficient to trigger the notice requirements mentioned above. Thus, in this case, the party trying to redeem, who was not in the chain of title but had paid taxes, was not entitled to receive a barment notice.

Here, the tax deed owner won and the party trying to redeem lost. However, all parties who deal with tax deeds in Georgia can learn from this case. If you own a tax deed and need a lawyer, please call us at (404) 382-9994 to discuss barring the right to redeem for your tax deed.