GA Underwriting Summary

Search/Exam

• Minimum Search Requirements No specific statute – See GA Uniform Title Standards
  • Under Title Standard 2.1, a record title covering a period of 50 years or more is considered sufficient to determine marketability.
  • Marketable Record Title Act has a 40 year search requirement but it is local custom to follow the State Bar of Georgia title standards

• Plant or other search restrictions No, but Attorney cert may be required?
• Additional Requirements for REO Searches No
• Foreclosure Checklist N/A
• Special Searches Required (Code, HOA, Utilities)? No
• Survey Requirements No

UPL

• UPL Hot Button Issues YES – AGGRESSIVE STATE BAR ACTIONS TO PROHIBIT THE UNAUTHORIZED PRACTICE OF LAW. APPROVED LAW FIRM IS _________; USE OF ANY OTHER LAW FIRM REQUIRES WRITTEN CONSENT FROM THE COMPLIANCE DEPARTMENT

• Advisory Opinion 04-1 requiring use of IOLTA accounts
• Advisory Opinion 13-1 prohibiting "Witness Only" Closings

The Georgia State Bar has recently issued Formal Advisory Opinion No. 10-R2 on the role and responsibilities of non-lawyers and Georgia licensed attorneys in the closing and consummation of real estate transactions. The opinion places a new emphasis on the supervisory role of the Georgia licensed attorneys in real estate transactions, including refinances, and more clearly states what actions constitute the unauthorized practice of law. The opinion includes the following:

A person who is not licensed to practice law in Georgia and is not working under the direct supervision of an active member of the State Bar may not perform functions or services that constitute the practice of law.

A non-lawyer is engaged in the unauthorized practice of law if he or she performs any of the following functions in connection with a real estate closing:

• Prepare any document conveying title (including warranty deed, limited warranty deed, quitclaim deed, security deed, and deeds to secure debt) and any lien or other legal instrument or assist in selection of a form legal document from several forms having different legal implications without the review and consent of a Georgia licensed attorney.
• Oversee, facilitate and participate in the execution of instruments conveying title or other legal instruments by anyone other than a duly licensed Georgia attorney. This includes notaries, signing agents or other individuals, who are not a party to a real estate transaction, presiding over the execution of deeds and other closing documents.
• Transmittal of documents of conveyance for recordation and delivery.
• Give an opinion on title to real property and resolve any defects in marketable title.
• Give any legal advice, opinion or counsel or take any action for others in any matter connected with the law.
• Receipt, collection, disbursement and handling funds exchanged in connection with the closing of a transaction.
• Attorneys issue the title insurance policies and related forms.

here are approved agents that are not attorneys but are required by law to work with an attorney to disburse settlement proceeds and close the transaction.

Code Section 44-14-13 of the Official Code of Georgia Annotated, as amended May 2, 29012, defines “Settlement Agent” for the purposes of disbursement of settlement proceeds in the closing of residential real estate transactions. For all purchase money and refinance transactions, only a lender or an active member of the State Bar of Georgia shall conduct the closing and disburse the closing proceeds as Settlement Agent. Any individual, corporation, partnership or any entity conducting the closing and disbursing funds in violation of this section shall be liable for damages to any party suffering a loss and shall also be guilty of a misdemeanor.

On all property located in the State of Georgia, Issuing Agents must use a Georgia licensed attorney in good standing with the State Bar to conduct the closing and to disburse funds on all residential real estate transactions.

Vesting

• The community property concept is not recognized in Georgia.
• Tenancy in common is presumed when two parties are in title and other vesting is not stated. GA Code 44-6-120
• Georgia does NOT recognize tenancy by the entirety
• Georgia does recognize joint tenants with right of survivorship. It is presumed to be a tenancy in common unless it expressly describes the interest taken as ""joint tenants," "joint tenants and not as tenants in common," or "joint tenants with survivorship" or as taking "jointly with survivorship." GA Code 44-6-190
  • Joint tenancy may be created in a conveyance from one person to themselves and another. GA Code 44-6-190
• Homestead laws are not applicable.

Mortgage/Transfer Tax

• The tax for recording is $1.50 for every five hundred dollars of consideration on face amount of the note. The tax is paid to the Clerk of Superior Court at the time of recording the security instrument. All security deeds are required to show their maturity date.

• Transfer tax for deeds $1 per every one thousand dollars of consideration. based on the full consideration less any outstanding liens. The seller usually pays the deed tax and the transfer tax.

• Deeds must be accompanied by a real estate transfer tax declaration form. This form is filled out [http:\\www.gsccca.org/efiling/pt61 online]. A printout of the confirmation form, along with the deed and the transfer tax must be presented to the Superior Court Clerk along with the deed and payment of the tax at the time of recording

Spousal Joinder Requirements/Homestead

No Community Property, No Homestead, No Spousal Joinder required unless in title.

Foreclosure Review

We do not insure tax deeds in Georgia without a Quiet Title Action. After that it is still necessary to check tax process carefully. Per Clint 3/24/16

Time Limitations

• US Judgment Liens 20 years, renewable for 20 years
• State Court Judgment Liens 7 years
• Federal Tax Liens 10 years (+30 days); can be refiled
• State Tax Liens 7 years
• Estate Tax Lien Federal 10 years
• State Inheritance Tax Liens
• Mechanics Liens 1 year unless suit is filed
• Financing Statements 5 years
• Mortgages
• HOA Liens
• Condominium assessments
• Child Support Liens

Odd Stuff

• O.C.G.A. §44-14-3(c.1) the prior closing attorney, who caused the indebtedness to be paid in full, may direct the clerk of court to cancel a security deed upon affidavit.
• Usury coverage is available by endorsement at rate of $.10 per thousand. There are no exemptions with respect to usury under State law. There are both civil and criminal penalties in this State. Please refer to Code section OCGA 7-4-1 and 7-4-2 et seq.