EXECUTION, ATTESTATION, ACKNOWLEDGMENT AND RECORDING



4.1 Date Omissions and Inconsistencies



Omission of the date of execution from a conveyance or other instrument affecting title does not, in itself, impair marketability. Even if the date of execution is of peculiar significance, an undated instrument will be presumed to have been timely executed if the dates of acknowledgment and recordation, and other circumstances of record, support that presumption.

Inconsistencies in recitals, or indications of dates of execution, attestation, acknowledgment, or recordation, do not, in themselves, impair marketability. Absent a peculiar significance of one of the dates, a proper sequence of formalities will be presumed notwithstanding such inconsistencies.

4.2 Delivery Delay in Recordation


Delivery of instruments attested or acknowledged and recorded is presumed in all cases in which the instrument appears to be the result of an arm’s length transaction. Specifically, delay in recordation does not customarily dispel the presumption. However, a deed recorded after the death of the grantor which does not appear to reflect an arm’s length sale transaction is not entitled to the presumption and necessitates inquiry.

4.3 Georgia State Transfer Tax


Whether or not the Georgia state transfer tax was in fact paid on any deed filed or recorded on or after March 16, 1983 shall not impair marketability or constructive notice. Any deed dated on or after January 1, 1968 and filed or recorded prior to March 16, 1983, which appears upon its face to have been conveyed for a monetary consideration in excess of $100.00, and which does not have any certificate of the Clerk of the Court affixed or stamped to the same might be ruled by the Courts to be a violation of O.C.G.A. Section 48-6-4, before its 1983 amendment, and that it affords no constructive notice. The deed must be inquired into and corrected.

Comment: In Higdon v. Gates, 238 Ga. 105, 231 S.E.2d 345 (1976), the Supreme Court, in reviewing this Code Section prior to its 1983 Amendment, held that a recorded deed on which the required tax had not been paid did not constitute constructive notice. Until and unless the Court holds that the 1983 Amendment retroactively affected deeds filed or recorded prior to March 16, 1983, care must be taken to determine that the requisite amount of tax has been paid on the transfer recorded during the period from January 1, 1968 to March 16, 1983. As a practical matter the Clerk of the Superior Court is not required to accept for filing and recording purposes a conveyance deed if the deed is not accompanied with the Transfer Tax Declaration, signed by purchaser and seller, reflecting the consideration for the conveyance, along with payment of the transfer tax due based upon the Declaration. Certain grantors and grantees are exempt from the tax, but the Declaration form must still be submitted with the consideration or value shown, and the Clerk will stamp such deeds “No Tax due.” the Clerk’s certificate of tax pad or “No Tax Due” may be relied upon by subsequent purchasers or lenders as evidence that the proper tax has been paid. However, as this Standard provides, whether or not the transfer tax was in fact paid on any deed filed or recorded after March 16, 1983 shall not affect marketability or constructive notice. If a quitclaim deed contains a recital regarding the release of property from the lien of a creditor’s such as, for example, a security deed, assignment of rents, U.C.C. financing statement, judgment or mechanics’ and materialmen’s lien or any claim of similar nature, no declaration form is required and no tax is due.

4.4 Internal Revenue Service Real Estate Reporting


The failure to report a real estate transaction subject to the federal Tax Reform Act of 1986 to the Internal Revenue Service does not impair marketability of title to real estate. Comment: See 26 U.S.C. Section 60445. Although failure to report a transaction subject to the Act on an IRS 1099 will subject the closing attorney to penalties, such failure does not impair marketability of title to the property.

4.5 Requirements for Recording a Deed in Georgia


AS OF JULY 1, 2015: For a deed to be recorded, Georgia law requires that it be signed by the maker (grantor), attested by an officer as provided in O.C.G.A. 44-2-15, and attested by one other witness. O.C.G.A. Section 44-5-30. A deed is attested when an officer as provided in O.C.G.A. 44-2-15 and one or more natural persons see the maker sign the deed and they "attest" to the fact by signing the deed as officer and witness.

As of the July 1, 2015 revision to O.C.G.A. 44-5-30, an acknowledged deed will not be entitled to be recorded. "Acknowledging" a deed is not the same as "attesting" a deed. To be recorded, a deed must be "attested" by an officer as provided in O.C.G.A. 44-2-15, and attested by one other witness ". . If there is only one (1) "attesting" witness, the deed is not entitled to be recorded, even if the deed is subsequently "acknowledged" and even if the one "attesting" witness is an authorized officer. O.C.G.A. Section 44-2-14. The above requirements are the same for all deeds, regardless of their nature. Therefore, when attestation is not proper, it must be reported as a title defect.

PRIOR TO JULY 1, 2015: For a deed to be recorded, Georgia law requires that it be signed by the maker (grantor) and attested by at least two (2) witnesses. O.C.G.A. Section 44-5-30. A deed is attested when two or more natural persons see the maker sign the deed and they "attest" to the fact by signing the deed as witnesses.

Also, the deed must be attested or acknowledged by an officer authorized by Georgia statutes. O.C.G.A. Section 44-2-14, 44-2-15. The official witness can be one of the two (2) required attesting witnesses. If the deed is not attested by an official witness, it may be acknowledged after execution and the acknowledgment certified on the deed by the official witness entitling the deed to be recorded. O.C.G.A. Section 44-2-16. Acknowledgment involves the grantor's declaration before a notary public or other officer that, in fact, he is the maker named in the deed, that he signed the deed, and that the signature on the deed is in fact his signature; these facts provide the substance of the officer's certification of acknowledgment. White v. Margarahan, 87 Ga. 217, 13 S.E. 509 (1891) (overruled on other ground by Leeds Building Product, Inc. v. Sears Mortgage Corp. 267 Ga. 300, 477 S.E. 2d 565 (1996) which allows a deed that was properly attested or acknowledged on its face, but contained a latent defect, to provide constructive notice. Although customary in some jurisdictions, the Georgia Code does not require the maker's signature on the acknowledgment. O.C.G.A. Section 44-2-15.

An acknowledgment does not eliminate the requirement for at least two (2) attesting witnesses. "Acknowledging" a deed is not the same as "attesting" a deed. To be recorded, a deed must be "attested" by two (2) witnesses; if one of the "attesting”witnesses is an authorized officer, there is no need for an "acknowledgment". If there are two (2) unofficial "attesting" witnesses, the deed is still not entitled to be recorded until "acknowledged" by an authorized officer. If there is only one (1) "attesting" witness, the deed is not entitled to be recorded, even if the deed is subsequently "acknowledged" and even if the one "attesting" witness is an authorized officer. O.C.G.A. Section 44-2-14. The above requirements are the same for all deeds, regardless of their nature. Therefore, when attestation or acknowledgment is not proper, it must be reported as a title defect.

4.6 Constructive Notice of Security Deeds



AS OF JULY 1, 2015: To admit deeds to secure debts or mortgages to record, they must be attested by an officer as provided in Code Section 44-2-15 and attested by one other witness. O.C.G.A. Section 44-14-61 and O.C.G.A. Section 44-14-33. A deed to secure debt or mortgage is attested when an officer as provided in O.C.G.A. 44-2-15 and one or more natural persons see the maker sign the deed to secure debt or mortgage and they "attest" to the fact by signing the deed to secure debt or mortgage as officer and witness. When a security deed is defectively attested, it may be corrected by a new corrective deed or a modification agreement. See Revised State Bar of Georgia Title Standards §14.4. O.C.G.A. Section 14-2-18 provides that if a mortgage or security deed is not properly attested, the security deed may be recorded upon the affidavit of a subscribing witness, and the officer must testify to the execution of the deed and its attestation according to law. Also, O.C.G.A. Section 44-2-19 outlines procedures for recording a deed by affidavit when the subscribing witness or witnesses are dead, insane or have moved outside the state or otherwise incapacitated to make an affidavit.

Comment: Assignments and Releases

O.C.G.A. §44-14-64 sets out that all transfers of deeds to secure debt….”shall be witnessed as required for deeds”.

When a quit claim deed is executed to release property from a Security Deed it should be attested in the same manner required for deeds, see Chapter 4.5. When a cancellation is executed to cancel the security deed of record, OCGA 44-14-67 provides a form and requires that any cancellation shall be substantially similar to the form provided, see Chapter 14.7. The form provides for a witness and notary, therefore good title practice requires that the cancellation should be executed in the same manner as deeds.

PRIOR TO JULY 1, 2015: To admit deeds to secure debts to record, they must be attested or proved in the same manner prescribed by law for mortgages. O.C.G.A. Section 44-14-61. To admit a mortgage to record, it must be attested by or acknowledged before an officer as prescribed for the attestation or the acknowledgment of deeds of bargain and sale. In the case of real property, a mortgage must also be attested or acknowledged by one additional witness. O.C.G.A. Section 44-14-33.

When a security deed is defectively attested or acknowledged, it may be corrected by a new corrective deed or a modification agreement. See Revised State Bar of Georgia Title Standards §14.4. O.C.G.A. Section 14-2-18 provides that if a mortgage, or security deed, is neither attested by nor acknowledged before one of the officers set out in O.C.G.A. Section 44-2-15, the security deed may be recorded upon the affidavit of a subscribing witness, and the officer must testify to the execution of the deed and its attestation according to law. Also, O.C.G.A. Section 44-2-19 outlines procedures for recording a deed by affidavit when the subscribing witness or witnesses are dead, insane or have moved outside the state or otherwise incapacitated to make an affidavit.

4.7 Actual and Constructive Notice



AS OF JULY 1, 2015 A deed that is not properly attested is ineligible for recording, and may be rejected by the clerk of the court, or, even if recorded, will not serve as constructive notice. Coniff v. Hunnicutt, 157 Ga. 823, 122 S.E. 694 (1924). However, that actual notice from record, if seen in the record by the purchaser or his attorney, will be effective even if the deed is ineligible for recording, and thus will trigger inquiry notice. Gardner v. Granniss, 57 Ga. 539 (1876). This conforms with Georgia's race/notice standard which provides that a purchaser who has actual notice of a prior instrument does not have priority over a subsequent purchaser even if that prior instrument is unrecorded or defectively recorded. O.C.G.A. Section 44-2-3.

PRIOR TO JULY 1, 2015 A deed that is not properly attested or acknowledged is ineligible for recording, and may be rejected by the clerk of the court, or, even if recorded, will not serve as constructive notice. Coniff v. Hunnicutt, 157 Ga. 823, 122 S.E. 694 (1924). However, that actual notice from record, if seen in the record by the purchaser or his attorney, will be effective even if the deed is ineligible for recording, and thus will trigger inquiry notice. Gardner v. Granniss, 57 Ga. 539 (1876). This conforms with Georgia's race/notice standard which provides that a purchaser who has actual notice of a prior instrument does not have priority over a subsequent purchaser even if that prior instrument is unrecorded or defectively recorded. O.C.G.A. Section 44-2-3.

Comment: Effect of Gordon Cases:

Taken together, U.S. Bank National Association v. Gordon, 709 S.E. 2d 258 Ga (2011) and Wells Fargo Bank v. Gordon, 292 Ga. 474 (2013) establish that for a security deed to be "duly filed, recorded and indexed," in satisfaction of O.C.G.A. Section 44-14-33 and the 1995 Amendment, the security deed must not be facially defective and thus cannot be missing any required signatures or attestations and acknowledgments. The Supreme Court in the Gordon cases explicitly voiced concern that the relaxation of execution formalities, for equitable reasons, would increase the risk of fraud and would undermine the efficacy and purpose of such requirements for the recording system. Note that under §544(a) of the Bankruptcy Code, the Trustee enjoys a heightened hypothetical bona fide purchaser status, regardless of actual notice, that has not yet been applied outside of the bankruptcy context by the Georgia Supreme Court.