Quiet Titles In Georgia

Though many investors purchase tax sale properties with the intent of collecting the
redemption premium, often times the property is not redeemed and the buyer has to take
possession through the foreclosure of right of redemption. One question that we are frequently
asked is " What if I want to sell the property or use it as security?". The first step is to properly
complete the foreclosure of right of redemption, then if you desire to have marketable title
within the span of the self ripening four years , most would suggest quiet title action. Below is
some information that will help you get acquainted with this procedure.

I. Introduction
II. Conventional Quia Timet
III. Georgia's Land Registration System
IV. Quiet Title Act of 1966
V. Virtual Representation

I. Introduction

Various methods have been employed in Georgia to remove clouds to land titles. Most actions traditionally have
been brought as "conventional" quia timet actions. Originally they were brought under common law and later under
a codified quia timet statute contained in the original Code of Georgia of 1863. Because of inadequacies with
conventional quia timet actions, other methods of eliminating clouds to title have developed. These methods include
the Land Registration Act of 1917 - a system of judicial title registration. While land registration remains a viable
method of clearing clouds to title, its use has declined rapidly in recent years in Georgia. Land registration has now
been largely replaced by the most recently developed method for clearing titles, the Quiet Title Act of 1966. Pindar,
Georgia Real Estate Law and Procedure, § 24-2 (3d ed. 1986). An additional method of clearing clouds to title may
be used in situations involving a life estate and a contingent remainder. This method, sometimes referred to as
virtual representation, warrants some attention as it is very useful given appropriate facts.

II. Conventional Quia Timet

Generally, suits to quiet title are referred to as actions quia timet, which comes from the Latin for "because he fears
or apprehends." Black's Law Dictionary (5th ed. 1979). In Georgia, there are two statutory types of quia timet
actions, "conventional quia timet" and "quia timet against all the world". "Qui timet against all the world" is
authorized by the Quiet Title Act of 1966 which will be discussed in detail later in this paper.

Conventional quia timet actions are governed by O.C.G.A. § 23-3-40, et seq. A conventional quia timet proceeding
is an equitable action for the purpose of "causing to be delivered and canceled any instrument which has answered
the object of its creation or any forged or other iniquitous deed or other writing which, though not enforced at the
time, either casts a cloud over the complainants' title or otherwise subjects him to future liability or present
annoyance, and the cancellation of which is necessary perfect protection." O.C.G.A. § 23-3-40. An essential element
of a conventional quia timet action is that the party requesting the relief must specifically identify the instrument
which is creating the cloud to title. O.C.G.A. § 23-2-42. Relief is granted in those cases where the invalidity of the
instrument creating the cloud appears on the instrument's face or is proven by outside facts. O.C.G.A. § 23-3-41.

The usefulness of the conventional quia timet action is limited by the Georgia Supreme Court's definition of what
creates a cloud to title. In Thompson v. Etowah Iron, 91 Ga. 538 (1893), the court held that in order for an
instrument conveying real estate to constitute a "cloud upon title," and therefore to be subject to a conventional quia
timet proceeding, the instrument must constitute an apparent title. This decision is the basis for O.C.G.A. § 23-3-42,
which specifies when an instrument constitutes a cloud to title. The statute provides that:
 An instrument which, by itself or in connection with proof of possession by a former occupant or
other extrinsic facts, gives the claimant thereunder an apparent right in or to the property may
constitute a cloud on the title of the true owner; and the latter may proceed to have the same
removed upon proof:

(1) That he cannot immediately or effectually maintain or protect his rights by any others course of
proceeding open to him;
(2) That the instrument sought to be canceled is such as would operate to throw a cloud or
suspicion upon his title and might be vexatiously or injuriously used against him;
(3) That he either suffers some present injury by reason of the hostile claim of right or, though the
claim has not been asserted adversely or aggressively, he has reason to apprehend that the
evidence upon which he relies to impeach or invalidate the same as a claim upon his title may be
lost or impaired by lapse of time.

Examples of instruments that courts in Georgia have found to constitute clouds to title include a lease which had
expired, a contractor's claim of lien, and an execution issued upon a judgment already satisfied. Pindar § 25-18.

Another limitation on the conventional quia timet action is that the party seeking to clear the cloud to title must be
in, and prove, actual possession of the subject property. Hale v. Turner, 183 Ga. 593 (1936). In Hale, the court held
that where the defendant is in possession of the disputed property, the party claiming title has an adequate remedy at
law in that he can bring an action for ejectment. Since the plaintiff had an adequate remedy at law, he was not
allowed to bring a conventional quia timet action.

III. Georgia's Land Registration System

The Georgia Land Registration Act of 1917, O.C.G.A. § 44-2-40 et seq., was enacted to provide a simple and
inexpensive method for evidencing title to land. Although the Quiet Title Act of 1966 has largely supplanted land
registration, some mention of the land registration system should be made because it remains a viable method for
clearing clouds to title.

Basically, land registration is an "action in rem" against "all the world" in which a person claiming title to land
petitions the court for a decree authorizing the registration of title to the subject land. The decree also vests title to
the land with the petitioner. O.C.G.A. § 44-2-61. The complicated nature of an action to register land partially
explains why land registration has been supplanted by the Quiet Title Act of 1966 as the preferred method for
clearing clouds to title. The following is a brief summary of the complex procedures involved in bringing a land
registration action:

1) The petitioner claiming the interest in the land files a petition with the superior court. The
petition must be verified by the petitioner and must contain, among other things, a description of
the land involved and an explanation of how the land was acquired. A survey of the land must be
included with the verified petition. O.C.G.A. § 44-2-64.

2) The petition must name as defendants all persons who have an interest in the land. Owners of
adjoining property must also be named. O.C.G.A. § 44-2-64,

3) The petition must include as defendants all persons "whom it may concern." O.C.G.A. § 44-7-
67.

4) A copy of the petition must be served in accordance with O.C.G.A. § 9-11-4 on all named
defendants. O.C.G.A.§ 44-2-67.
 5) "To whom it may concern" defendants must be served by publication. Notice to these
defendants must be published for four separate weeks in the newspaper where sheriff's
advertisements appear for the forum county. O.C.G.A. § 44-2-67.

6) A notice of the pending action must also be posted on the subject property, as well as on any
dwelling house on the property, and a copy of the petition must be mailed to the occupants of the
dwelling houses. Only after notice is physically posted on the property does the court acquire in
rem jurisdiction over the property. O.C.G.A. s 44-2-73.

Upon receiving the petition for registration, the superior court refers the matter to an examiner appointed by the
court. The examiner reviews the petition and the survey of the subject land, conducts a hearing, and then prepares a
report setting forth his decision concerning the state of the title to the land. Within twenty days of receiving the
examiner's report, the superior court judge issues a decree. The petitioner or anyone contesting the petitioner's rights
has the right to take exception to the examiner's decision and request a jury trial in the superior court prior to the
superior court's issuing its final decree. Following the issuance of the final decree or the conclusion of a jury trial,
the clerk of the superior court issues a certificate of registration which is conclusive as to all parties.

Land registration to establish title has never been widely used to establish title in Georgia. It has been suggested that
the system never gained popularity because of its complexity and its unfamiliarity to most attorneys. Additionally,
there has been reluctance on the part of attorneys to open up title to attack by potential adverse claimants with a
published notice "to whom it may concern." Pindar § 25-10. Perhaps the biggest disadvantage of land registration is
that ownership is conclusively established by physical possession of the land registration certificate. If the certificate
is lost, an elaborate procedure to reissue the certificate must be followed. Pindar § 24-4.

IV. Quiet Title Act of 1966.

Because of inadequacies with the other methods cuff clearing clouds to title, the Georgia Legislature passed the
Quiet Title Act of 1966 (the "Act"), which authorizes claimants to bring an action known as "quia timet against all
the world." The purpose of the act is to:

create a procedure for removing any cloud upon the title to land, including the
equity of redemption by owners of land sold at tax sales, and for readily and
conclusively establishing that certain named person are the owners of all the
interests in land defined by a decree entered in such proceedings, so that there
shall be no occasion for land in this state to be unmarketable because of any
uncertainty as to the owner of every interest therein. O.C.G.A. § 23-3-60.

The Act offers several advantages over land registration and conventional quia timet actions and has become the
primary method of clearing clouds to title in Georgia. The action binds "all the world" without the issuance of the all
important title certificate required by the land registration act and without the publication of notice, unless personal
service cannot be effected. Additionally, unlike in Conventional quia timet actions, specific instruments creating
clouds to title need not be identified.

The requirements for using the Act are as follows:

1) Any person, which term includes corporations, partnerships, or other associations, may make
use of the Act. O.C.G.A. § 23-3-61.

2) The person employing the Act must claim a freehold estate or an estate for years, of which at
least five years remain, in the subject property. O.C.G.A. § 23-3-61. The claimed interest in the
land must be a specific legal right, not an expectancy. In In Re: Rivermist Homeowners
Association, 244 Ga. 515 (1979), it was held that the dedication of certain land within a
subdivision for recreational purposes did not give the subdivision's homeowners' association
standing to claim an easement and file suit under the Act .
 3) The Act may be used to quiet title against all claimants known or unknown to the petitioner.
O.C.G.A § 23-3-61.

4) Venue is proper in the county in which the land is located. O.G.G.A § 23-3-62.

The following are the basic procedural steps for utilizing the Act:

l) A petition filed under the Act must be verified by the petitioner and must include the following
information:

a) a legal description of the land;

b) specifications of the petitioner's interest in the land;

c) a statement as to whether the interest is based upon a written instrument

(whether the same be a contract, deed, will, or otherwise) or adverse possession
or both;

d) descriptions of all adverse claims of which petitioner has actual or

constructive notice;

e) the names and addresses of any possible adverse claimants; and,

f ) if the proceeding is brought to remove a particular cloud or clouds, a

statement as to the grounds upon which the cloud or clouds are sought to be
removed. O.C.G.A. § 23-3-62. A sample petition is included in the Appendix
(Note: the Appendix is not available in this Internet version).

With the petition, there must also be filed: 1) a plat of survey of the land, 2) a copy of the immediate instrument or
instruments, if any, upon which petitioner's interest is based, and 3 ) a copy of the immediate instrument or
instruments of record or otherwise known to petitioner, if any, upon which any person might base an interest in the
land adverse to the petitioner. O.C.G.A. § 23-3-62. It has been held that this provision is limited to requiring the
petitioner to include with his petition the most immediate instrument upon which his interest is based. Capers v.
Camp, 244 Ga 7 (1979).

2) A notice of lis pendens must be filed by the petitioner when he files his petition. O.C.G.A. § 23-
3-62.

3) The court, upon receipt of the petition, forwards the petition to a special master. O.C.G.A. § 23-
3-53. The special master must be an attorney authorized to practice law in the judicial circuit
where the action is brought. A sample motion for appointing a special master is included in the
Appendix.

4) The special master first determines who is entitled to notice. Those entitled to notice include all
adjacent land owners and all adverse claimants. The special master must cause process to be
served personally on all persons entitled to notice and to all persons whom the action may
concern. O.C.G.A, § 23-3-65. A sample order as to notice and process is included in the
Appendix. If process cannot be served personally, the special master must request that the court
issue an order allowing service by publication. The notice must be printed in the newspaper where
sheriff's advertisements appear for the forum county and must contain the following:

1. the name of the petitioner and the respondent, a caption setting forth the court,
 2. a caption setting forth the court,

3. the character of the action,

4. the date the action was filed,

5. the date of the order for service by publication,

6. a notice directed to the party served by publication commanding him to

appear at the court within 30 days of the date of the order for service by
publication, and

7. the notice must be signed by the clerk. O.C.G,A, § 23-3-66.

5) The special master next ascertains the extent of the petitioner's title and reports his findings to
the superior court. The superior court then issues a final decree which must be recorded in the
clerk's office. Additionally, a marginal reference to the decree must be entered upon any recorded
instrument stated to be affected thereby. O.C.G.A. § 23-3-67. Prior to the special master issuing
his decree, any party has a right to demand a trial by jury. O.C.G.A. § 23-3-66. A sample special
master's report is included in the Appendix.

6) Any person not previously a party has a right to intervene within thirty (30) days from the
entering of the final decree. O.C.G.A. § 23-3-69.

The Act has been used in a number of different situations to solve land title problems. The following cases are
illustrative of the various situations in which the Act can be used:

1) Removal it Easements. In Wiggins v. Southern Bell Telephone & Telegraph Co., 245 Ga, 256 (1980), the Act was
used successfully to eliminate a road easement claimed by a local government and to eliminate a utility easement
held by a telephone company.

2) Title By Adverse Possession. In Walters v. McNiece, 257 Ga. 440 (1986), the Georgia Supreme Court affirmed a
decision under the Act holding that the petitioner had acquired title to property by adverse possession.

3) Boundary Line Dispute. In Middleton v. Robinson, 241 Ga. 174 (1978), the court held that the location of a
boundary line was a question of title to land, within the contemplation of the Act.

V. Virtual Representation

In certain instances, clouds to title may arise from contingent remainders in favor of unborn or minor persons.
Georgia courts have acted to clear such clouds pursuant to the doctrine of virtual representation. The doctrine of
virtual representation permits a court of equity to step in and extinguish contingent remainders to permit a purchaser
of property to obtain marketable title. Pindar § 7-43. The jurisdiction of equity courts to extinguish such contingent
remainders is now unchallenged:

[A] superior court has jurisdiction of an equitable petition seeking a decree

ordering the sale of the interest of contingent remaindermen, both those in life
and any possible unborn, so as to convey the fee simple title before termination
of the life estate. Kennedy v. Durham, 219 Ga. 859 (1964).

The doctrine of virtual representation first appeared in Georgia in the case of Cooney v. Walton, 151 Ga. 195
(1921). Cooney is also illustrative of the factual situations in which the doctrine may be used. In Cooney, the
plaintlff's deceased husband bequeathed to the plaintiff a life estate in certain commercial real property. The
deceased husband's will stated that at the plaintiff's death, the remainder was to pass to the deceased husband's "then
living issue," and if none, to several named relatives.

Because the property was unproductive and in need of expensive repairs, the plaintiff decided to sell the property
and to put the proceeds in trust for the benefit of the remaindermen. A contract was entered into with the prospective
purchaser. The terms of the contract required that prior to the closing, title to the property would be made
marketable and the cloud created by the existence of contingent remaindermen would eliminated. The plaintiff then
petitioned the superior court for a decree approving the sale and confirming the marketability of the title. The
superior court granted the decree and extinguished the rights of all unborn remaindermen .

The purchaser questioned the validity of the decree and refused to consummate the transaction. Consequently, the
seller filed suit for specific performance. The Georgia Supreme Court upheld the superior court's granting of the
decree. The court stated that generally a court cannot find against a man in his absence. Where, however, strict
adherence to this rule would deny justice, the court may use its equitable powers to extinguish the estate held by the
unborn remaindermen. Id. at 201. Since in Cooney, all living remaindermen were before the court, and all potential
additional remaindermen would be the heirs of the remaindermen before the court, the living remaindermen were the
"virtual representatives" of the unborn. Because all the living remaindermen desired that the property be sold, and
the court viewed the living remaindermen as the virtual representatives of the unborn, the court approved the sale.

The factual scenario which would support using the doctrine of virtual representation is as follows:

1) There is a life estate which is not coupled with a power of sale;

2) The life estate is followed by a contingent remainder or remainders in favor of minor or unborn
persons;

3) A living, competent remainderman is present; and

4) There is some valid equitable reason for the land to be sold .

The following is a brief procedural overview of the doctrine:

1) The petition must be filed in the county of residence of one or more defendants against whom
relief is sought (generally, the life tenant acts as plaintiff and the remaindermen as defendants),
and not in the county where the land lies. See, e.g., Dooley v. Scoggins, 208 Ga. 200 (1951).

2 ) The petition must be verified and must contain the following:

a) A description of the subject property; and

b) A statement of the valid equitable reason why the land should be sold instead
of held as contemplated under the will.

Courts have found that valid equitable reasons for sale exist where the land cannot be used in an economically
beneficial manner by the owner of the life estate. In Kennedy v. Durham, supra, the court found that where property
is vacant and incapable of being farmed or of producing any income for the payment of taxes, a valid equitable
reason existed for the sale of the land. Similarly, the sale of land to support a widow and to provide for the education
of the testator's children was a sufficient equitable reason for the sale of property. See, e.g., Rakestraw v. Rakestraw,
70 Ga. 806 (1883).

3) All living remaindermen must be made parties to the action. See, e.g., Crawford v. Moorman,
163 S.E. 179 (1932).
 4) A guardian ad litem must be appointed to represent minor or incompetent defendants and
unborn remaindermen, except those who have regular guardians who are also parties to the case.
See, e.g , Etheridge v. Pitts, 152 Ga. 1 (1921); O.C.G.A. § 9- 11-17. The guardian ad litem should
not have any conflicting interest in the property. See, e.g., Sangster v. Toledo Manufacturing Co.,
193 Ga. 685 (1942).

5) Service on all parties must be perfected a reasonable time before the hearing. O.C.G.A. § 9- 11-
4.

After service on all parties, the court conducts a hearing in which the court may hear evidence. The guardian ad
litem for the unborn and minor contingent remaindermen is expected to make a recommendation based on his
investigation of the merits of the case. Pindar § 7-46. At the conclusion of the hearing, the court may enter an order
authorizing the sale of the subject property in fee simple. If the terms of the sale have previously been negotiated,
the court may enter an order simply confirming the sale. Pindar § 7-47. In either case, the order must include a
provision requiring the reinvestment of sale proceeds for the benefit of all interested parties. The order may include
a provision allowing the value of the life estate to be paid to the life tenant, with the remaining proceeds being
invested for the benefit of the remaindermen. Pindar § 7-46.

In 1984, the Georgia Legislature enacted a statute, O.C.G.A § 44-6-90, that is closely related to the doctrine of
virtual representation. The statute authorizes superior court judges to hear evidence as to the likelihood of a class of
contingent remaindermen expanding. If the evidence indicates that the class will not expand, the judge may close the
class. The judge may then make a determination as to the marketability of the subject property and allow the
property to be sold.

.....

Reprinted for GTS with exclusive permission of:

Dana Garrett Diment
Smith & Diment
402 Newnan Street
Carrollton, Georgia 30117
© Copyright. Diment. 1997 - 2002.