23.1 In General

Where the examining attorney finds marketability of title dependent on a land registration proceeding, he must check the proceeding to see that it strictly complies with the Code provisions. If after careful examination, the examining attorney is satisfied that all such requirements have been complied with, such registration may be relied upon as a root or start for the title search.

Comment: The purpose of the Land Registration Law enacted in 1917, (O.C.G.A. Sections 44-2-40 through 253) (the “Act”), sometimes referred to as the Torrens Act, is to provide a vehicle whereby an owner can judicially establish the marketability of the title to the owner’s land. One unique provision of the original Act is that once registered, all transactions relating to the ownership of the registered land are to be entered upon the “Certificate of Title” by the Clerk of the Superior Court, rather than in the real estate indexes and other dockets maintained by the Clerk. By Georgia Laws 1952, Pages 164, 165, (O.C.G.A. Section 44-2-144) a decree of registration rendered on or after February 15, 1952, shall operate to free the registered land from further registration unless the decree expressly provides that the land shall remain subject to the Act.

Consequently, as to decrees of registration entered prior to February 15, 1952, the examiner must first examine the “Register of Decrees of Title” to determine the beginning link in the chain of title and the “Title Register” to determine all subsequent transactions involving the land. If the decree of registration is subsequent to February 15, 1952 and provides that the land is freed from further registration, the examiner must examine the general real estate indexes and other applicable dockets forward from the date of the decree.

By Georgia Laws 1989, Page 563 (O.C.G.A. Section 44-2-141), effective April 4, 1989, registered land and ownership therein “shall be subject to the same rights, burdens, and incidents as unregistered land ...” and registered land may be dealt with by the owner “in the same manner as if it had not been registered.” The examiner must examine the general real estate indexes and other applicable dockets forward from April 4, 1989 in addition to the Register of Decrees of Title and Title Register as to any registered title which has not been freed from further registration.

As in any judicial proceeding, to establish marketability of title to land, the examiner is cautioned that the interest of a person who was not a party to a land registration proceeding or who did not receive legal notice of such proceeding is not divested, and such fact should be reported.