The Georgia Supreme Court has again indicated that if the owner of a tax deed goes to the trouble of barring the right or redemption (and, thus, vesting ownership in the tax deed owner) the owner must file some indication on the land records of the bar redemption or risk the loss of the tax property.
What is disappointing about this ruling and the Official Code of Georgia Annotated, is that there is no form, no deed or indicated filing to show all the world that the right of redemption has been barred. There is a historical record of the legal organ publication; however, the legal advertisement is not of record on the land records.
Our firm has, therefore, created an “Affidavit of Title Under Tax Deed,” that we file after we bar the right of redemption for a client. The Clerk of Court, generally, will not accept a “deed” or some other muniment of title; however, the Clerk must accept an Affidavit affecting title. Thus, we file an Affidavit. Had Alvin Washington, filed our document on the land records, he probably would have won his case. Washington v. Mckibbon Hotel Group, Inc., Case No. S08A0584, Supreme Court of Georgia, July 11, 2008.
Hugh Wood, Atlanta, Georgia.
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The form we file (redacted) is:
After Recording Return to:
Wood & Meredith, LLP Cross Ref.: DB 00000 P 00
Attorneys at Law
3756 Lavista Road
Atlanta (Tucker), Georgia 30084
STATE OF GEORGIA
COUNTY OF _________
TITLE UNDER TAX DEED
This is Notice to All the World:
That on December 00, 2008, the Ex Officio Sheriff of [ Insert County ] County, Sheriff acting for and on behalf [ Insert County ] County, and due to the failure of the then record owner of the real property at that time, Acme Properties, Inc., to pay the property taxes as they had become due and payable to [ Insert County ] County, did grant, bargain, sell, alien and convey, at public outcry, to Alpha & Beta Development, Inc. of Atlanta, Georgia, for and in the Consideration of $00,000.00, the real property described below as follows:
ALL THAT TRACT or parcel of land lying and being in Land Lot [Insert Legal Desription] hereinafter "Subject Property."
The Tax Commissioner and Ex Officio Sheriff of [ Insert County ], by public sale, granted, bargained, sold and conveyed the property to Alpha & Beta Development, Inc., pursuant to the sale of properties by tax deed, the tract of land, subject to the right of redemption by the owner(s), with all singular rights, members and appurtenances thereof, being, and belonging, or in anywise appertaining, to the proper use and benefit of Alpha & Beta Development, Inc. after the valid extinguishment of the owner(s) right of redemption.
Pursuant to the purchase of the tax deed and in compliance with OCGA § 48-4-42, Alpha & Beta Development, Inc. now shows all the World that Notice was sent to the entities, parties and individuals who possessed any interest in the property in order to forever foreclose the right of redemption. The tax deed to which the notice related, is recorded in the Office of the Clerk of Superior Court of [ Insert County ] County, Georgia, in Deed Book 00000 at Page 00. These notices were sent certified and regular mail, and informed the receiver that the property could be redeemed at any time before November 00, 2008, by payment of the redemption price as provided by law pursuant to OCGA § 48-4-42. Pursuant to law, the Notice of the Right to Redeem was published in the legal organ of [ Insert County ] County, The County Legal Organ, on September 00, 00, October 00, and 00, 2008. The last day to redeem, November 15, 2008, passed with no redemption taking place.
In as much as Alpha & Beta Development, Inc. has provided proper notice of the right to foreclose the right of redemption as provided by law, and no redemption having been made by any former owner or creditor, Alpha & Beta Development, Inc. now shows all the World that the property is now no longer subject to the right of redemption.
Alpha & Beta Development, Inc. hereby states that it is now the fee simple owner, as against all the World of all rights, members, appurtenances and all incidents of ownership, whether surface fee, subsurface fee and any and all mineral interests in the land, as against all claimants in all the world, wherever situate.
Alpha & Beta Development, Inc. hereby further declares that it will forever defend its right and title from the date it acquired it, November 00, 2008, it to any Grantee against the claims of all persons whomsoever.
IN WITNESS WHEREOF, Alpha & Beta Development, Inc. has caused this instrument to be executed and sealed the day and year written below.
Alpha & Beta Development, Inc.
Its: ______________ (Seal)
[ Insert Address ]
Sworn to and subscribed to before
me this the ____ day of ______, 2008.
My Commission Expires
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McKIBBON HOTEL GROUP, INC.
Supreme Court of Georgia
July 11, 2008
At issue in this case is title to an almost triangular, 0.082-acre parcel of real property. Vernita Kearse originally had record title, but the property was sold for nonpayment of taxes. Charles Layton was the purchaser of the property and received a tax deed in 1982, but he then lost the property due to nonpayment of taxes. Johnnie Mae Shedrick purchased the property and received a tax deed in 1984. She also lost the property for nonpayment of taxes, and it was purchased by Appellant Alvin Washington, who received a tax deed to the property in 1990.
Appellee McKibbon Hotel Group, Inc., which owns property contiguous to the parcel of land at issue, purchased Mr. Layton's interest in 2006, and brought an action for quiet title in 2007, claiming title to the property by means of a right of redemption which it acquired through that purchase. Appellant claimed title through his purchase of the property at a tax sale followed by his purported foreclosure of the rights to redeem the property from the sale pursuant to OCGA § 48-4-45 or, alternatively, through the ripening of his tax deed by prescription into fee simple title under OCGA § 48-4-48 (b). In accordance with OCGA § 23-3-63, the case was submitted to a special master, who recommended issuance of a decree which vested fee simple title in Appellee. The trial court approved and adopted the special master's report, and entered a decree vesting title in Appellee. Appellant appeals from that order.
1. The trial court, through its adoption of the special master's report, concluded that Appellant's claim of foreclosure of the rights to redeem failed because "the documentary record is silent as to any actions taken by him in this regard" and, even if that were not so, "he still failed to set out all of the requisite requirements for a barment, such as notice to any occupants of the property and all persons with any interest of record."
"[O]ne seeking to bar redemption under OCGA § 48-4-45 must comply with its notice requirements." Blizzard v. Moniz, 271 Ga. 50, 53 (518 S.E.2d 407) (1999). However, regardless of whether the trial court erred in finding that Appellant failed to comply with those notice requirements, the trial court did correctly conclude that his claim of foreclosure of all rights to redeem must fail "since the documentary record is silent as to any actions taken by him in this regard." We take this statement to refer to the trial court's previous finding that the county real estate records do not contain an entry memorializing the successful completion of the foreclosure of the right of redemption. "Any original notice [of such foreclosure] together with the entries on the notice may be filed and recorded on the deed records in the office of the clerk of the superior court of the county in which the land is located." OCGA § 48-4-46 (d).
Even assuming that Appellant's evidence documenting the steps he took in 1992 to foreclose the rights of redemption reflects compliance with OCGA § 48-4-45 as a matter of law, there nevertheless is not any evidence of record that those steps were successfully completed. Indeed, this litigation would not have taken place had the purported foreclosure of the right of redemption been filed and recorded. Appellee acquired the interest of a tax deed grantee with notice only that Appellant, as a subsequent tax deed grantee, held an inchoate or defeasible title under the laws of this state and that Appellant's title could be perfected upon foreclosure of all senior rights of redemption. However, Appellee did not have any notice that such foreclosure had been accomplished so that Appellant's interest through his junior tax deed became a perfect fee simple title. See Bennett v. Southern Pine Co., 123 Ga. 618 (51 SE 654) (1905) (a tax deed constitutes record notice only that the grantee has an inchoate title subject to redemption). Compare Herrington v. LaCount, 225 Ga. 232, 233-234 (167 S.E.2d 631) (1969) (where the seven-year period of repose provided under the law in effect from 1949 to 1978 had expired, see Moultrie v. Wright, 266 Ga. 30, 31-32 (1) (464 S.E.2d 194) (1995), the lack of a foreclosure of redemption on record was insufficient to prove that fee simple title had not vested in grantee of tax deed or in his assignees). Thus, with respect to Appellant's interest as a result of his purported foreclosure of the rights to redeem, Appellee stands in the position of a good-faith purchaser for value without notice.
2. Even though Appellant failed to give record notice of the allegedly complete foreclosure of redemption, we still must address whether his 1990 tax deed title ripened by prescription into fee simple title four years after the execution of the tax deed. See OCGA § 48-4-48 (b-d).
In order for a tax deed title to ripen by prescription into fee simple title, the plain language of OCGA § 48-4-48 (b) requires adverse possession, as set forth in OCGA § 44-5-161, by the tax deed grantee for a period of four years. Mark Turner Properties v. Evans, 274 Ga. 547, 549 (2) (554 S.E.2d 492) (2001); Blizzard v. Moniz, 271 Ga. 50, 54 (518 S.E.2d 407) (1999). Under OCGA § 44-5-161 (a) (3), it is mandatory that possession, in order to be the foundation of prescriptive title, "be public, continuous, exclusive, uninterrupted, and peaceable ...." Furthermore, "the purchaser at a tax sale does not have constructive possession of the premises. [Cit.]" Mark Turner Properties v. Evans, supra.
Actual possession of lands may be evidenced by enclosure, cultivation, or any use and occupation of the lands which is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another.
OCGA § 44-5-165. "Where there is no evidence of enclosure or cultivation, notoriety and exclusivity become questions of fact .... [Cits.]" Friendship Baptist Church v. West, 265 Ga. 745 (462 S.E.2d 618) (1995).
In the report adopted by the trial court, the special master resolved these questions of fact as follows:
Although [Appellant's] possession factually meets four of the tests for prescription listed [in OCGA § 44-5-161], he failed to establish by a preponderance of the evidence facts which satisfy the third requirement, that his possession was public, continuous, exclusive, uninterrupted and peaceable. His testimony was unpersuasive that he did anything other than pay the taxes on the property and occasionally cut the grass. There is not evidence of any occupancy by himself or anyone else on his behalf, nor that the premises were cultivated, fenced or in any other way utilized so as to provide notice to other persons of his interest in the property. It is apparent that the City performed much of the maintenance on the property as [Appellant] was admittedly unable to do so, including demolition of the structure on the property, which was never occupied. Thus, his claim of prescription under the statute fails.
Although the nature and situation of the property and the uses to which it can be applied are proper considerations, "the fact that the land may be useless for most purposes will not relieve the claimant of the necessity of establishing such possession as will meet the requirements of law and serve to warn the true owner of his adverse claim." 1 Pindar's Ga. Real Estate Law and Procedure § 12-28, p. 825 (6th ed. 2004) (citing McCook v. Crawford, 114 Ga. 337, 339 (40 SE 225) (1901), which held that use of the land for timber cutting and as range for livestock did not constitute actual possession, that at least a fence could have been erected even if it was expensive and troublesome, and that, if the character of the property makes it truly impossible to be in actual possession thereof, title cannot be acquired by prescription, but only by written evidence of title).
The findings of the trial court in this case show that Appellant "did mow and occasionally clean up the area, but that is not generally sufficient to constitute actual possession, much less to require such conclusion as a matter of law. [Cit.]" Friendship Baptist Church v. West, supra at 746. Furthermore, "[p]ayments of taxes 'are insufficient to establish prescriptive title, however long continued, even though accompanied by constant assertions of title.' [Cits.]" Mark Turner Properties v. Evans, supra. Accordingly, neither Appellant's payments of taxes nor occasional cleanup and mowing are
as notorious or exclusive as ... enclosure or cultivation would be. Therefore, the issue of actual possession "becomes a question of fact for the jury. (Cit.)" [Cit.] Where[, as here,] there is some evidence on either side of this issue, a reviewing court should not disturb the verdict. [Cit.]
Friendship Baptist Church v. West, supra. Thus, the trial court did not err when it concluded that Appellant's tax deed did not ripen by prescription into a fee simple title. The opposite conclusion could be reached only by overruling Friendship Baptist Church or by wholly disregarding that controlling precedent.
3. The trial court also correctly determined that Appellee holds the senior right to redeem the property and is entitled to do so from Appellant. Because Appellee's calculations of the redemptive price were unrefuted, the trial court ordered Appellant to execute a quitclaim deed to Appellee upon receipt of the tendered money. Indeed, Appellant did not offer any evidence to the contrary at the special master's hearing. Accordingly, the judgment of the trial court is affirmed.
All the Justices concur, except Sears, C. J., who concurs in the judgment only and Benham, J., who dissents.
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Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Atlanta (Tucker), GA 30084
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