Chapter 5
Georgia Real Estate
An Introduction to the Profession
Eighth Edition
Chapter 5
Transferring Title
Key Terms
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adverse possession
bargain and sale deed
cloud on the title
color of title
consideration
covenant
deed
general warranty deed
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grantee
grantor
intestate succession
quitclaim deed
special warranty deed
testate
warranty
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Deeds
A deed is a written legal
document by which
ownership of real property
is conveyed from one party
to the other.
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Deeds
The Statute of Frauds
requires that transfers of
real estate ownership be in
writing to be enforceable in
a court of law.
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Essential Elements of a Deed
The Grantor, typically the
seller, must be named on
the deed.
The grantor must be of legal
age and of sound mind.
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Essential Elements of a Deed
The Grantee is typically the
buyer.
The grantee must be clearly
identified, but is not
required that they have full
legal capacity.
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Essential Elements of a Deed
Legal description, either a
metes and bounds
description or a reference to
a recorded document, such
as a plat.
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Essential Elements of a Deed
Granting clause – the deed
must clearly state the
intention to convey the
property from the grantor to
the grantee.
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Essential Elements of a Deed
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Essential Elements of a Deed
A deed is a contract between a grantor and
grantee, and as such requires consideration.
“…TEN AND 00/100 DOLLARS ($10.00) and
any other good and valuable consideration…”
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Essential Elements of a Deed
Restrictions and Exceptions
The grantor may reserve an easement to
access adjoining property.
The transfer may place conditions on the use
of the property, and the transfer may reserve
certain rights, such as water rights, mineral
rights or air rights.
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Essential Elements of a Deed
The grantor is required to
sign the deed.
The grantee is NOT required
to sign the deed.
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Essential Elements of a Deed
For a deed to be valid, there must be delivery
by the grantor and acceptance by the grantee,
or a person acting on their behalf.
The delivery and acceptance must take place
during the lifetime of the parties.
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Covenants and Warranties
The grantor can include certain covenants and
warranties in the deed.
A covenant is a written agreement or promise.
A warranty is an assurance or guarantee that
something is true as stated.
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Covenants and Warranties
There are five covenants that can be included
with a deed:
• Covenant of Seizin
• Covenant of Quiet Enjoyment
• Covenant Against Encumbrances
• Covenant of Further Assurance
• Warranty Forever
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Covenants and Warranties
Under the covenant of seizin, the grantor
guarantees to be the owner and possessor of
the property being conveyed.
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Covenants and Warranties
Under the covenant of quiet enjoyment, the
grantor guarantees that the grantee will not be
disturbed by someone else claiming an
interest in the property.
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Covenants and Warranties
The covenant against encumbrances
guarantees to the grantee that the title is not
encumbered with any easements, restrictions,
unpaid property taxes, mortgages or
judgments except as stated in the deed.
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Covenants and Warranties
The covenant of further assurances requires
the grantor to procure and deliver to the
grantee any subsequent documentation that
might be necessary to make good the
grantee’s title.
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Covenants and Warranties
Warranty forever is a guarantee to the grantee
that the grantor will bear the expense of
defending the grantee’s title.
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Covenants and Warranties
The habendum clause is commonly known as
the “to have and to hold” clause.
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Covenants and Warranties
A date is common in the deed, but it is not
required. The date of recording is the date the
world is constructively notified of the grantee’s
interest in the property.
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Covenants and Warranties
Witnesses are required to record the deed. In
Georgia, two witness are required. One witness
must ben an official witness, usually a notary
public.
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Covenants and Warranties
Signed in front of witnesses creates an
acknowledgment, which is a requirement for
recording.
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Covenants and Warranties
An acknowledgment is the witnessed
declaration made by a person signing a
document that his action was voluntary.
Acknowledgment is a requirement to record at
the county courthouse into public record.
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Covenants and Warranties
Recording is the most effective way to provide
constructive notice to the world of the owner’s
interest in the property. It is not necessary to
record a deed for it to be valid between
parties.
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Covenants and Warranties
If the deed is not recorded, a subsequent
buyer could enter into a contract to purchase
the property from the previous owner.
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Covenants and Warranties
If there was no reasonable way to know that
the person claiming to be the owner was not,
the sale would be valid and the first buyer
would have to take legal action against the
seller.
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General Warranty Deed
A general warranty deed contains all 5
covenants and warranties.
This is the best deed a grantee can receive.
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Special Warranty Deed
A special warranty deed warrants the
property’s title only against defects occurring
during the grantor’s ownership and not against
defects existing before that time.
A grantee can protect against this gap by
purchasing title insurance.
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Bargain and Sale Deed
A bargain and sale deed contains no
covenants and only the minimum essentials of
a deed.
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Quitclaim Deed
A quitclaim deed has no covenants or
warranties. Whatever rights the grantor
possesses at the time the deed is delivered
are conveyed to the grantee.
If the grantor has no interest, none is conveyed
to the grantee.
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Quitclaim Deed
A title defect or a cloud on a title can be
removed through the use of a quit claim deed.
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Other Types of Deeds
A correction deed is used to correct an error in
a previously executed and delivered deed.
A name could have been misspelled or an
error found in the property description.
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Intestate
If a person dies without leaving a last will and
testament, they have died intestate.
State law directs how the deceased assets will
be distributed by intestate succession.
If no heirs can be found, the deceased
property escheats to the state.
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Testate
A person who dies and
leaves a valid will dies
testate. The person who
made the will is the
testator.
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Testate
Real property that is willed
is known as a devise.
Personal property that is
willed is known as a
bequest or legacy.
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Testate
The testator usually names
an executor or executrix to
carry out the instructions.
If no one is named, the
court appoints an
administrator.
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Testate
Once a deed is made and
delivered, the ownership
transfer is permanent. The
grantor cannot have a
change of mind.
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Testate
With a will, the devisees
have no rights to the
testator’s property until the
testator dies.
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Probate or Surrogate Court
Upon death, the deceased’s
will must be filed with a
probate court.
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Probate or Surrogate Court
If the testator owned real
property, its ownership is
conveyed using an
executor’s deed.
An executor’s deed is a
special warranty deed.
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Protecting the Deceased’s Intentions
All states recognize the
formal or witnessed will.
This is prepared most often
by an attorney.
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Holographic Will
A holographic will is a will
that is entirely handwritten.
There are no witnesses.
Holographic wills have no
effect in Georgia.
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Oral Will
An oral will is also known as
a nuncupative will, is a will
spoken by a person who is
very near death.
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Oral Will
Oral wills are recognized in
Georgia, but they must be
witnesses by two people
with no interest in the
estate. It must be put into
writing within 30 days.
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Codicil
A codicil is a written
amendment to a previously
existing will. The codicil
must be dated, signed and
witnessed in the same
manner as the original will.
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Adverse Possession
Through the unauthorized
occupation of another
person’s land for a long
enough period of time, it is
possible to acquire
ownership by adverse
possession.
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Adverse Possession
The claimant must have
maintained an actual,
visible, continuous, hostile,
exclusive and notorious
possession and publicly
claim ownership of the
property.
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Adverse Possession
The use must have been
without permission.
The claimant must be able
to prove that he has met
these requirements for 20
years in Georgia, 7 if the
claimant has color of title.
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Color of Title
If the claimant has been
paying the property taxes,
the required occupancy
period is shortened.
Color of title suggests the
appearance of ownership
interest.
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Color of Title
Claimants can add on their period to another
adverse possessor through tacking.
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Color of Title
Another source of adverse possession is
through encroachments.
If a building extends over a property line and
nothing is said about it for a long enough
period of time, the building will be permitted to
stay.
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Easement by Prescription
An easement can be acquired by prolonged
adverse use is an easement by prescription.
The usage must be openly visible, continuous,
and exclusive, as well as hostile and adverse
to the owner.
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Easement by Prescription
In Georgia, the use must be over 7 years for
private property; 20 years for public property.
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Easement by Prescription
An easement is a right to use land for a
specific purpose and not ownership of the land
itself.
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Easement by Prescription
An owner can break it by ejecting the
trespassers, by preventing them from
trespassing or by giving them permission to be
there.
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Ownership by Accession
Accretion is the addition of land because of
the gradual accumulation of rock, sand and
soil fronting a lake, river or ocean.
Alluvion is the increase of land that results
when soil is gradually deposited to produce
firm dry ground.
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Ownership by Accession
Reliction results when a lake, sea or river
permanently recedes, exposing dry land.
When land gradually wears away because of
the action of wind or water, this process is
known as erosion.
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Ownership by Accession
When land is rapidly
washed away by the action
of water, it is known as
avulsion.
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Ownership by Accession
Manmade accession occurs through
annexation of personal property to real estate.
For example: when loose rocks are used to
form a permanent retaining wall, the rocks are
annexed to the land.
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Public Grant and Dedication
A transfer of land by a government body to a
private party is called a public grant.
When an owner makes a voluntary gift for the
use of land to the public, it is known as a
dedication.
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Alienation of Title
A change in ownership of any kind is an
alienation of title.
Alienation means to transfer.
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Alienation of Title
Alienation can result from escheat, eminent
domain, partition, foreclosure, quiet title suits
and marriage.
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