CO-TENANCIES



7.1 Conveyances by Co-tenants


Where title is in two or more persons, including spouses, in any form of co-tenancy, an otherwise effective conveyance by them without reference to the tenancy is sufficient. An erroneous reference to the type of tenancy, or an indication of a mistaken impression as to the type of tenancy is unobjectionable. After all co-tenants have effectively conveyed, all questions as to the type of tenancy which existed are moot, and any indication of a mistaken impression by the co-tenants or their grantor as to the type of tenancy which existed is unobjectionable.

7.2 Conveyances by Survivor of Joint Tenancy with Right of Survivorship, or Surviving Grantee in Survivorship Deed


The survivor of a joint tenancy with right of survivorship, or the surviving grantee in a survivorship deed, can convey good title to the property so owned without the necessity of probate or administration of the estate of the deceased co-tenant by:

(a) Proof in the case of a joint tenancy created subsequent to The Joint Tenancy Act of 1976 (Ga. Laws 1976, Page 1388; O.C.G.A. Section 44-6-190), that there has been no severance by lien or conveyance of record; and

(b) Proof, in recordable form, of the death of the deceased joint tenant or cotenant, as the case may be, which includes, (i) probate or administration of the decedent’s estate, (ii) certified copy of Georgia death certificate, or (iii) affidavit of proof of death by a disinterested third party;

(c) The survivor in both of the above circumstances may cause the proof of death to be recorded at any time after the death, or at the time of a conveyance, at which time such proof may be more difficult to obtain by virtue of the passage of time. Comment: Prior to The Joint Tenancy Act of 1976, there was no joint tenancy in Georgia by operation of law. Questions may still exist as to the possibility of a severance, but it is felt that the amendment of 1984 (Ga. Laws 1984, Page 1335) protects bona fide purchasers from a severance by any lifetime transfer which is unrecorded. A survivorship deed is not subject to such severance problems, and has been upheld by case law. (Epps v. Wood, 243 Ga. 835, 257 S.E.2d 259 (1979); see Pindar and Pindar, Ga. Rel Est. Law, Sections 19-13, -13.1 (4th Ed.). The importance of title examiners and closing attorneys diligently resolving any questions of the legitimacy of the proof of the putative decedent’s death cannot be overemphasized.

7.3 Recitals as to Percentage of Interest Being Conveyed


A recital that a conveyance is intended to convey all of the grantor’s interest in the real estate controls over an inconsistent specification of the percentage of undivided interest being conveyed.