REAL PROPERTY FORFEITURE


28.1 “Relation Back”


An examiner’s certificate of title should take exception to any possible future forfeiture of title as a result of any possible prior criminal act under federal or state law by any party in the chain of title.

Comment: Real property which is the “proceed” of certain federal and/or state criminal activity or which is used to “facilitate” certain federal and/or state criminal activity does at the occurrence of this criminal activity become the property of the federal and/or state government under a legal fiction called “relation back.” This fiction can place the interests of the federal and/or state government prior to the interests of lienholders or transferees of real property interests without the recordation of the government’s interests on the Record. Statutes, case authority and government policy, however, provide a measure of protection to “innocent owners” and/or bona fide purchasers for value.

See: 18 U.S.C. Sections Sections 853(c) violations); and U.S.C. Sections 2253(b) and 2254(g) (sexual exploitation of minors); 18 981(f) and 982(b)(1) (money laundering/FIRREA violations); 21 U.S.C. and 881(h) and O.C.G.A. Section 16-13-49(e)(5) (controlled substance 18 U.S.C. Sections 1961, 1962 and 1963(1) and O.C.G.A. Section 16-14-7 (racketeer influenced activities and/or corrupt organizations). The vesting of title under this doctrine is not self-executing. [United States v. A Parcel of Land (92 Buena Vista Avenue), 113 S. Ct. 1126 (1993), relating to civil, not criminal, forfeiture.] The claimant who has failed to record his lien may have “hard sledding” but he is not as a matter of law foreclosed from pursuing his claim. [Hallman v. State, 141 Ga. App. 527, 528, 233 S.E.2d 839 (977)].