Georgia Real Estate Practices. Attorney Involvement

Transcription

1 Georgia Real Estate Practices Attorney Involvement Please describe any requirements under applicable state law for attorney, abstractor or other special professional involvement, for example, in the search, examination, opinion of title, signing, closing, disbursement, recording, preparation of documents, and/or policy-issuance. "It is the opinion of the State Bar of Georgia that the physical presence of an attorney is required for the preparation and execution of a deed of conveyance (including, but not limited to, a warranty deed, limited warranty deed, quitclaim deed, security deed, and deed to secure debt). The Supreme Court of Georgia has consistently held that it is the unauthorized practice of law for someone other than a duly-licensed Georgia attorney to close a real estate transaction or to prepare or facilitate the execution of such deed(s) for the benefit of a seller, borrower, or lender. See Formal Advisory Op. No (86-R9) (May 12, 1989); Formal Advisory Op. No (Feb. 11, 2000); and Formal Advisory Op. No (Nov. 10, 2003)." 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: 1. 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. 2. 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. 3. Transmittal of documents of conveyance for recordation and delivery. 4. Give an opinion on title to real property and resolve any defects in marketable title. 5. Give any legal advice, opinion or counsel or take any action for others in any matter connected with the law. 6. Receipt, collection, disbursement and handling funds exchanged in connection with the closing of a transaction. 7. Attorneys issue the title insurance policies and related forms. There 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.

2 Code Section 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. Cancellation/Commitment Fee Does your state permit or require a cancellation fee or commitment fee upon cancellation? Not required or prohibited. Certificate of Release (of Mortgage) If anyone other than the lender (such as a title agent, settlement agent, underwriter or attorney) has the authority to release the security instrument, please describe. No, with an exception pursuant to O.C.G.A (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. Otherwise, the answer is no. Deeds Please describe the kinds of deeds that are customary for commercial and residential transactions. Please describe the kinds of deeds that are generally not insurable. The customary form of conveyance is GA Deed-Warranty 1. Other common forms of conveyance include the following: GA Deed-Warranty (Limited) 1 GA Deed-Quitclaim 1 Generally, Quitclaim Deeds are not insurable without local underwriter approval. Forms: GA LIMITED WARRANTY DEED GA QUIT-CLAIM DEED GA WARRANTY DEED Statewide recording fees are $10.00 for the first page and $2 for each additional page and a $2

3 cross-reference fee per instrument. Cancellations are $10.00 and assignments are $5.00 for the first page. Superior Court Clerks do not generally rush record documents filed for record in this State. Joinder of Spouses If a non-title holding spouse is required to join in the execution of a deed or a security instrument, please describe. Any analogous rights, such as those in a civil union or equivalent, should also be addressed. A non title holding spouse is not required to join in the execution of a deed or security instrument. The community property concept is not recognized in Georgia. Georgia does not recognize tenancy by the entirety, but does recognize joint tenants with right of survivorship. Homestead laws are not applicable. Civil Unions are not recognized. Mortgage Tax Is there a mortgage tax in your state? If yes, is it uniform across the state or does it vary? If it is uniform, please describe. 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. Yes. This is a state tax so it is uniform across the state. Payment Customs Who customarily pays for: (a) Owner s Policy? (b) Transfer Tax & Recording Fee? (c) Survey Charges? (d) Closing/Settlement Fees? (a) Owner s Policy: Negotiable Loan Policy: The Buyer usually pays for the loan policy (b) Transfer Tax & Recording Fee: Negotiable (c) Survey Charges: Buyer (d) Closing/Settlement Fees: Negotiable Policy Countersignatures

4 Please describe any statutory or regulatory requirements for countersignatures in order to issue the policy (for example, residency requirements). Attorney Agent/ Approved Attorney Agent The attorney does not need to reside in the State of Georgia but must be a member of the State Bar of Georgia and in good standing and appointed by Stewart as an agent. Real Estate Taxes Please describe the general tax year, due dates, and delinquency dates, including lien dates and payment cycle. Real property (ad valorem) taxes become a lien on all of the land owned by the taxpayer as of January 1st of each tax year until paid. The due dates for ad valorem taxes vary across the state and it is not uncommon for tax bills to come out later in the tax year. O.C.G.A Please consult a local underwriter for information relating to real estate taxes on the subject property. Search and Examination Fees Is it permissible and/or customary to charge a separate search and/or examination fee, and under what circumstances? If your jurisdiction is all-inclusive, please state that. This is a separate charge from title insurance premium. The purchaser customarily pays for the search and exam. Search Requirements Is there a minimum period of time for a title search required: (a) by state law, (b) pursuant to marketable record title acts, or (c) by any other applicable title examination standards (e.g., state bar association)? Please respond to each category. If a minimum search period exists for any category, please state it. (A) State Law: Under Title Standard 2.1, a record title covering a period of 50 years or more is considered sufficient to determine marketability. We require a minimum of a 50 year search unless the agent consults a local underwriter for approval relating to a reduced search on the property. (B) Marketable Record Title Acts: The marketable title act has a 40 year search requirement but it is local custom to follow the State Bar of Georgia title standards referred to in (A) above. O.C.G.A a prima facia case shall be made out in actions respecting title to land upon showing good record title for a period of 40 years, and it shall not be necessary under such circumstances to prove title to the original grant from the state. Marketable title has been defined in a number of court cases as title which can be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence. (Cowdery v. Greenlee, 126 Ga. 786, 790, 55 S.E. 918 (1906)).

5 (C) None. Please see GA on Georgia Title Search Requirments. Security Instruments (Deed of Trust vs. Mortgage) Please describe the customary and permissible form(s) of security instruments used in your state. Who can be listed as the trustee on the Deed of Trust (e.g., residency and/or natural person requirements, etc.)? Can an underwriter or title agent be designated as the trustee, and, if so, is it customary? Mortgages are used, but they are rare. A security deed (deed to secure debt) is the customary security instrument in Georgia. Georgia does not use a Deed of Trust. Two witnesses are required for a mortgage to be recorded. One of the witnesses may be the notary taking the acknowledgment. This law applies whether the documents are executed in Georgia or another state. See O.C.G.A. Sections and Statewide recording fees are $10.00 for the first page and $2 for each additional page and a $2 cross reference fee per instrument. Cancellations are $10.00 and assignments are $5.00 for the first page. Superior Court Clerks do not generally rush record documents filed for record in this State. The standard release form is the Statutory Cancellation of Mortgage and Quitclaim Deed of Release in Georgia forms Forms: GA Cancellation of Security Deed (Statutory Form) GA Quit-Claim Deed for Release of Deed To Secure Debt Standard Exceptions and Requirements Please identify the standard exceptions and requirements that are customarily used in your state. Standard Exceptions: (a) Rights or claims of parties in possession not shown by the public records. (b) Easements, or claims of easements, not shown by the public records. (c) Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey and inspection of the premises.

6 (d) Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the public records. (e) Taxes or special assessments which are not shown as existing liens by the public records. Special Exceptions: 1. Taxes for the current year and subsequent years a lien not yet due and payable and any additional taxes, interest and/or penalties which may be assessed for prior tax years by virtue of adjustment, reappraisal, re-assessment, appeal or other amendment to the tax records of the city or county in which the insured property is located. The following are the requirements to be complied with: 1. Instruments necessary to create the estate or interest to be insured must be properly executed, delivered and duly filed for record. 2. Pay the full consideration for the interest in the land and/or mortgage to be insured. 3. Pay the Company the premium, fees and charges for the Policy to be issued pursuant hereto. 4. Execution by Owner/Seller/Contractor an Affidavit as to Debts and Liens or Affidavit and Indemnity. 5. Receipt of proof satisfactory to the Company that no improvements or repairs were made on caption property within ninety-five (95) days preceding the filing for record of the instrument(s) required at Item 1 above, or, in the event such improvements or repairs were made, that they have been completed and all costs incurred in connection therewith, including architect s fees, if any, have been paid; and that there are not parties in possession or with a right to possession other than Seller / Mortgagor. In the event that improvements or repairs were made on the property within 95 days preceding the closing and a general contractor was employed in connection therewith, in addition to the owner s affidavit required as item 4 above, the Company further requires a sworn Affidavit, Lien Subordination and Indemnity of the General Contractor, executed pursuant to Georgia statute, which identifies all subcontractors, material suppliers, and labors, a copy of which must be furnished for our file. Also the Company must be provided with lien subordinations or Final Lien Waivers from all subcontractors, material suppliers, and labors listed in the General Contractor s Affidavit. 6. Proof satisfactory to the Company, that all taxes or special assessments, including water bills, which are not shown as existing liens on the public record are paid in full at the time of closing. Upon receipt of such proof, Item (e) of the Standard Exceptions in Part II, Schedule B will be deleted or amended in accordance with the facts shown thereby. On commercial transactions only, the following requirement needs to be added: The Commercial Real Estate Broker Lien Act applies to a sale, lease, option, loan or other transfer of commercial real estate; therefore, disclosure by the seller and buyer (lessor and lessee) or by the borrower when there is no sale required, in affidavit form stating (1) whether or not broker s services have been engage with regard to the management, sale, purchase, lease, option or other conveyance of any interest in the Property and (2) whether or not a notice of lien for any such services has been received. Where the possibility of a right to file a broker s lien exists, satisfaction (waiver, estoppel statement and payment) of such a lien right must occur prior to or at closing. If not

7 so satisfied, an exception to any such right to a broker s lien will appear in Schedule B of the Policy. [Record any other matters here] State-specific Policy Variations If there are state-specific changes to the provisions in the ALTA policies (e.g., Arbitration, Minerals), please describe. There are no variations on the policy forms used in Georgia. We use the ALTA Homeowner Policy and ALTA Short Form Residential Loan Policy. We use the ALTA 2006 Long Form Owner and Loan Policies. Title Insurance Form and Filing Regulations Please describe the form and/or rate filing requirements, if any, related to policies and endorsements. Please describe any applicable rating bureau. Standard policy forms and endorsements are required to be filed with the Commissioner of Insurance, but there is an exception for forms of "unique character" designed for and used in relation to insurance upon a particular subject. A current effective Schedule of Charges for Use in the State of Georgia and related Title Insurance Rate Bulletin may be viewed at GA Transfer Taxes Is there a transfer tax in your state? If yes, is it uniform across the state or does it vary? If it is uniform, please describe. Georgia has a transfer tax for deeds. It is uniform across the state. The tax is $1 per every one thousand dollars of consideration. This is based on the full consideration less any outstanding liens. The seller usually pays the deed tax and the transfer tax. Deeds of conveyance must be accompanied by a real estate transfer tax declaration form. This form is filled out online at 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 of the deed. Usury Is usury coverage available?

8 Yes. The rate is $.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 and et seq. Withholding Taxes What are your state s requirements, if any, with regard to withholding proceeds from a sale, similar to but not including FIRPTA? O.C.G.A. section requires a withholding of 3 percent on sales or transfers of real property by non-residents of Georgia. Witness Requirements Are witnesses required on a deed or security instrument? If so, please describe. Standard acknowledgments are seldom used in Georgia because of the requirement that a conveyance of real estate must be attested by two witnesses. If no acknowledgment is used, either a notary or someone vested with notarial powers must be one of the witnesses. If an acknowledgment is used, two unofficial witnesses are required, in addition to the notary. Regardless of how a security deed and other instruments affecting title are prepared or where these documents are sent to be executed, all deeds filed for record in Georgia must be executed by the grantor and attested (i.e. witnessed) by two people who actually see the grantor execute the deed and who subscribe their respective names to the deed as a witness to that fact in order to meet Georgia s requirement for recording. These two witnesses must either be attested to or acknowledged by an officer as prescribed under OCGA The attesting officer may be one of the two witnesses. When the authorized officer is a notary public, the notary must also affix his or her seal and confirm the identity of the document signed, oath taker, or affirmant based upon personal knowledge or on satisfactory evidence. Deeds merely signed by the Grantor, but not witnessed, are binding between the parties but not entitled to be recorded. REQUIREMENTS FOR RECORDING INSTRUMENTS IN GEORGIA: General Method. The most common deed execution method is as follows: Signed, sealed and delivered In the presence of Unofficial Witness (Seal) (Grantor 1 Signature) Notary Public

9 Commission Expiration Date: (NOTARY SEAL) Unofficial Witness (Seal) (Grantor 2Signature) Notary Public Commission Expiration Date: (NOTARY SEAL) Second Method (based on California Jurat attestation): Signed, sealed and delivered In the presence of Unofficial Witness (Seal) (Grantor 1 Signature) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Subscribed and sworn to (or affirmed) before me on this day of, 20, by, proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me. (Seal) Signature