OPINIONS AND CERTIFICATES OF TITLE
24.1 Opinion as a Duty of Title Attorney
Under the laws of Georgia, one of the functions of an attorney and one of the definitions of the “practice of law” is the rendering of opinions as to the validity or invalidity of titles to real or personal property derived and concluded from the examination of necessary records made, or caused to be made by the attorney. This does not necessitate the title attorney personally examining the record books, but does necessitate the attorney’s responsibility for all record searches authorized by or purchases by said attorney in the fulfillment of said attorney’s title opinion contract with the client. No person under the laws of Georgia, other than an attorney at law, may express, render or issue any legal opinion as to the status of the title to real or personal property.
Comment: See O.C.G.A. Sections 15-19-50, -53 and -54.
24.2 Duty to Inform Client of Certificate Exceptions Which Can be Insured Over by Title Insurers
Exceptions in title certificates such as indexing errors of governmental personnel, forgeries, non-record violations of truth-in-lending laws, matters of survey and actual notice of title defects to owners of record, should be brought to the attention of the client in order that the client may make the decision to obtain title insurance in addition to the certificate of title or to waive same.
24.3 Actual Knowledge of Title Defects Which Do Not Appear on Court or Government Records
Any actual knowledge the examining attorney may have of a title defect such as a fence encroachment, occupancy and possession of the property involved, or adverse claims made to the attorney orally or in writing, take precedence over non-record notice, and the title opinion or certificate must reflect these exceptions resulting from actual knowledge of the title attorney.
24.4 Mistakes of Court Record Clerks
The title opinion or certificate should except to errors and omissions of court clerks and court employees and as to matters incorrectly indexed or incorrectly recorded in the public records.
Example: This certificate excepts to errors and omissions of court clerks and court personnel and matters incorrectly indexed or incorrectly recorded in the public records.
24.4 Title Rejection or Turning Down the Title as Not Being Marketable or Insurable
The title opinion which rejects a title or turns one down as being unmarketable or uninsurable should be backed up with citations from the O.C.G.A. or from Georgia case law that pertains to the defect to marketability or insurability. This is essential for the attorney’s own protection. Statements that the title is unmarketable without legal support would be unprofessional.