Atlanta Business Lawyer Blog

In my practice as an Atlanta, Georgia lien attorney, I can assure you Georgia liens are an important tool that builders, subcontractors and suppliers use when a property owner is delinquent on payment for a construction project. As a Atlanta, Georgia Construction lien attorney, I have seen changes in recent years to Georgia lien laws that have had a dramatic impact on the outcome of payment disputes on construction projects. The changes include important benefits for all concerned.

Changes to the law include how a lien is filed, removal of a lien and enforcement of a lien. One important modification is that in Georgia, only a licensed Georgia attorney may file a lien. Some of the changes to the law are so subtle, that only lawyers specializing in Georgia construction law may be able to properly file a lien. As a result, property owners, contractors, subcontractors and suppliers should always seek the qualified counsel of a Georgia construction attorney to handle lien issues.

Benefits of the changes in the lien law include the following. Property owners can contest a lien by sending the contractor a “Notice of Contest.” After receiving the notice, if the contractor wants to proceed, then the contactor must file a lawsuit within 60 days. Failure to file within 60 days invalidates the lien. Another benefit to the property owner is that an expiration date now is required on the lien. The modified law states that contractors will receive a copy of a filed lien when a “Notice of Commencement” is issued and subcontractors and suppliers will be notified when the property owner has bonded out a lien.

Continue reading "A GEORGIA LIEN LAWYER MUST FILE A LIEN IN CONSTRUCTION PAYMENT DISPUTES" »

As a Georgia property title lawyer, I know that under Georgia law property title law, individuals that do not hold legal title to land may take ownership of land legally under several scenarios. For many non-lawyers, this is hard to understand or believe. Georgia property owners need to be made aware of these types of situations in order to protect their right of ownership. Georgia law offers a number of ways that real property ownership can be transferred. Under Georgia law, adverse possession, prescriptive title, and color of title, are commonly referred to as “squatters rights.” Georgia law states that an individual who occupies a piece of land, but who is not the legal holder of the title, may gain ownership under certain circumstances after 20 years, or under “color of title” after 7 years. Under Georgia law, “Color of title” is evidence that the individual has a legal claim to property, although that claim has a defect. Examples are when the individual claiming ownership has a deed, but the deed is deficient or when two individuals hold deeds to the property simultaneously.

Despite what the statute of limitations is (7 or 20 years), the individual occupying the property usually must truly occupy the property continuously for the specified period of time. One possible exception to this rule is referred to as “Tacking.” The individual must also occupy the land in an open manner (not hidden from the real owner) and the individual must be using the property exclusively. Common scenarios are the use of a pathway between houses that the “squatter” has improved with a brick-paver pathway. If the real titleholder did not contest the use and improvement of this piece of land, because that owner never realized that the property fell within his property line, then the individual who made the improvements and used the pathway could take possession under the law. Another example is if a church allowed a parishioner to occupy a vacant home on church property, free of rent for over 20 years. That individual could file for adverse possession and attempt to take legal possession of the property.

In both these cases, regardless of the statute of limitations, the individuals laying claim to the land would have to have used the land continuously for the specified period. Because the individual occupying the property must do so without hiding their intention, most landowners do not realize that a problem exists and that the individual is squatting on the land. The issue usually arises when it is time to sell the property and the title is being checked. Unfortunately by this time, it is possible that the 7 or 20-year statute of limitations has run out and the land could be transferred to the squatter legally. For this reason it is imperative that boundary lines are checked when any property is purchased. Also, for vacant land, it is important to have the property checked periodically to move off any squatters. A qualified Atlanta, Georgia Real Estate lawyer can work to provide protection from these types of situations.

Continue reading "GEORGIA STATUTES DICTATE ADVERSE POSSESSION, PRESCRIPTIVE TITLE, AND COLOR OF TITLE -- “SQUATTERS RIGHTS” ARE ALIVE AND WELL" »

As an Atlanta, Georgia real estate litigation lawyer, I often work with clients to ensure that title disputes do not inhibit the sale of property. This two part series outlines several ways to resolve title disputes, including Quiet Title Actions. In this segment, I discuss how you can “quiet a title” without going to court, the circumstances under which you might need a Quiet Title Action to clear a title, and the two types of Quiet Title Actions in Georgia.

If the source of the problem with a title is already known, as might be evident in a case with a hostile partner who you know has no real interest in the land itself, you can opt to obtain a quitclaim deed from that person and put that on title. This will allow you to clear the title without going to court with a Quiet Title Action. But often the source of a dispute is not apparent and legal action with a Quiet Title Action is necessary. Disputes over titles can arise from tax sales, mechanics’ and materialmen’s liens, historical mechanics’ liens, issues of hostile ownership, boundary disputes, federal or state tax liens and disputes with a spouse or business partner (former or current). Adverse possession or prescription of title also cloud titles when an individual claims to have held the property for a long period of time without documentation or when, under Color of Title, that individual possesses a defective document that appears to show ownership.

Most of the issues listed above can be resolved using a Quiet Title Action, with the exception of federal or state tax liens and disputes involving a spouse. Federal and state tax liens must be addressed by another court and disputes involving a spouse fall under the domestic relations statutes in Georgia. When a Quiet Title Action is necessary, it is wise to seek the assistance of an experienced Atlanta, Georgia real estate lawyer. Your lawyer will choose from the two methods available to “quiet a title.” Both types fall under the Equity Code in Georgia (Chapter 23). The first is the Conventional Quiet Title Action that removes a known instrument or known instruments (Chapter 23-3-40). This method is not very common, but it is useful when you know exactly what is clouding the title and who is behind it. With this type of case you do not need to serve everyone with the petition, since you already know what and who is at the root of the issue.

Much more usual is use of the Quiet Title Act of 1966 (Georgia Equity Code Chapter 23-3-60 through 23-3-73). This method clears all known clouds on titles and as such, requires that the whole world be served with the petition. Because everyone is served, all disputes can be aired and resolved. This allows the title insurance company to insure the title, so that the seller can pass the property on to the purchaser with what is called “good and marketable title”. Because this form of Quiet Title Action clears any and all disputes on the title, it is an effective way to guarantee that a title is free and clear.

Keep an eye out for my next installment of this series on resolving Georgia title disputes. I will examine the general guidelines that need to be followed if you do go to court with a Quiet Title Action and take a look at a typical timeline for these cases.

Continue reading "GEORGIA TITLE DISPUTES RESOLVED WITH QUIET TITLE ACTIONS: PART 1 OF 2" »

In the previous segment on resolving title disputes with Quiet Title Actions, I discussed what Quiet Title Actions are used for, in what types of title disputes they can be effective and the two types of Quiet Title Action lawsuits. In this installment I will explain where the case is tried and the general guidelines that need to be followed when going to court with a Quiet Title Action. We will also take a look at a typical timeline for Quiet Title Action cases.

Georgia’s Equity Code provides that a Quiet Title Action may only be filed in the county where the land in question is located. Because Georgia has 159 counties, it is critical to be specific about where the land is located and in what county the claim is filed. In Georgia, the highest plenary court in any county is the Superior Court, so these lawsuits must be filed in the Superior Court of the county where the land is located. When filing a petition it is required that you state specifically what land you are suing to remove the clouds from and the suit must be signed and verified by you, the petitioner (as a petition in equity, the petitioner must swear to the facts). If you are filing under the Quiet Title Act of 1966, you must petition to remove all disputes, or clouds to title. Also, you must file a recent plat of the land, a copy of a recent survey of the land and a copy of the immediate deed or interest of the petitioner (this is the document that indicates that the petitioner is the true owner of the land). Once the petition is filed, a notice to “the whole world” must be filed at the land records office stating that there is a lawsuit pending regarding the land and that anyone that takes the land by deed or transfer, takes it subject to the lawsuit under lis pendens.

When the lawsuit is filed, the Superior Court judge of the county will assign the case to a lawyer, called a Special Master. From this point on the Superior Court judge typically has limited involvement. The Special Master is a lawyer that resides in the judicial circuit or county where the Superior Court is located and who has experience in real estate law. The Special Master is charged with examining the title. He does this by holding a hearing, and sometimes a trial, and by reviewing the petition to see that everything has been filed appropriately. He will also ensure that everyone that was required to be served the petition was served. It is important to note that all neighboring landowners will be served, so that they have an opportunity to bring up any outstanding disputes, such as boundary issues. Everyone served has 30 days to respond to the claim.

Then, just like any other trial, the case goes into an evidentiary phase during which there may be requests for documentation, depositions, physical inspections of the land, subpoenas and any other action that is allowed in Superior Court. As the petitioner, you may do anything you want to acquire evidence to prove your case. You must have proof of ownership, though, as it is not enough to just disprove someone else’s claim to the land. Failure to show proof of ownership is grounds for dismissal of the lawsuit. Once the evidence is gathered, the Special Master will review everything and send a written report to the Superior Court judge. The Superior Court judge will then make a determination of the title. Most times the judge will make this ruling based on the Special Master’s report, but in rare cases the judge might ignore the Special Master’s report and require that a trial be held or that evidence be reviewed. Usually though, the Superior Court judge accepts the Special Master’s report, processes an order which decrees the title to the land (eliminating clouds to title) and files the order with the court clerk.

Once the judge files the order with the clerk, the title is considered “good and marketable” in Georgia, although technically at this point there is a 30-day waiting period to allow for all final appeals to run out. This appeal period allows for anyone in the world, who did not have notice of the case, to come forward and file an appeal. To be recognized however, anyone stepping forward during this appeal period has to prove that they did not originally receive notice of the Quiet Title Action lawsuit. When the 30-day period ends the judgment is considered final, and once this occurs it is very difficult to reopen the claim. All title companies in Georgia will issue a “good and marketable” title at this point when the appeal period is over and the judgment becomes final and non-appealable.

Continue reading "GEORGIA TITLE DISPUTES RESOLVED WITH QUIET TITLE ACTIONS: PART 2 OF 2" »