TRANSFERS AND AGENTS



8.1 Effect of Designation “Trustee,” “Agent,” “Nominee,” or “Custodian”


(1) Subject to the provisions of O.C.G.A. Sections 14-05-46 through -50, when the sole word “Trustee” follows the name of a party to an instrument, and no trust is declared and no beneficiary is named either in this instrument or in any other recorded instrument in the chain of title, the word “Trustee” is mere surplusage and the named person takes title for his own use free from any trust; and a title from such person can be approved without investigation of the capacity of such person to convey. However, when the words “as Trustee” follow the name of a party to an instrument, this Standard does not apply and investigation should be made as to any trust under which such person is acting. The trust instrument or order of Superior Court must authorize sale or conveyance of trust property.

Comment: If, however, a purchaser has notice that a trust exists, he is bound by its terms and cannot take a good title in violation of such terms. Andrews v. The Atlanta Real Estate Company, 92 Ga. 260, 18 S.E. 548 (1893); Brenner v. Wright, 185 Ga. 280, 194 S.E. 553 (1937); O.C.G.A. Section 53-12-257.

Even if there is in fact no trust, Code Sections 14-5-46 through -50 have the effect of creating a legal entity when a deed to named trustees of an unincorporated church or other unincorporated society, such as a labor union, has been recorded in the Clerk’s Office. See Crumbley v. Solomon, 243 Ga. 343, 254 S.E.2d 330 (1979), Smith v. International Ladies Garment Workers Union, 58 Ga. App. 26, 197 S.E. 349 (1938).

(2) When the sole word “Agent” follows the name of a party to an instrument and no agency is declared and no principal is named either in this instrument or in any other recorded instrument in the chain of title, the word “Agent” is mere surplusage and the named person takes title for his own use free from any agency; and a title from such person can be approved without investigation of the capacity of such person to convey. However, when the words “as Agent” follow the name of a party to an instrument, this Standard does not apply and investigation should be made as to any agency under which such person is acting.

Comment: If, however, a purchaser has notice that an agency exists, he is bound by its terms and cannot take a good title in violation of its terms.

(3) When the sole word “Nominee” follows the name of a party to an instrument, the word Nominee” is mere surplusage and a title from such person can be approved without investigation of the capacity of such person to convey. However, when the words, “as Nominee” follow the name of a party to an instrument, this Standard does not apply and investigation should be made as to any agency under which such person is acting. Comment: If, however, a purchaser has notice that an agency exists, he is bound by its terms and cannot take a good title in violation of such terms.

(4) When the sole word “Custodian” follows the name of a party to an instrument, the word “Custodian” is mere surplusage and a title from such person can be approved without investigation of the capacity of such person to convey. However, when the words “as Custodian” follow the name of a part to an instrument, this Standard does not apply and investigation should be made was to any custodianship under which such person is acting.

Comment: See The Georgia Transfers to Minors Act, O.C.G.A. Section 44-5-110, et seq. If, however, a purchaser has notice that a trust or agency exists, he/she is bound by its terms and cannot take a good title in violation of such terms.

8.2 Termination of Trust



A deed from the trustee to the beneficiary of a trust under a recorded instrument at the time such trust terminates by its terms on a fixed date or upon the happening of a named event is unnecessary. Verification, however, must be made of the happening of the named event. It is, however, recommended that attorneys make every effort to place such instrument on record in the future as will aid title examiners in ascertaining the facts. 8.3 Deeds Executed in Representative Capacity Generally, the word “as” indicates and shows that the instrument is executed in a representative capacity. If “as” is omitted after the signature of grantor, the error is cured if the heading of the conveyance or recitals within the conveyance clearly show that the deed is being executed in a representative capacity rather than an individual capacity. 8.4 Formality Necessary to Create or Exercise an Agency Unless a contrary intent is expressly stated in the document creating the agency, when an agency is created by written instrument it is conclusively deemed to authorize execution by the agent of instruments with the formalities necessary or appropriate to accomplish the purposes for which the agency was granted, regardless of the formality with which the document creating the agency was executed. When an agency is exercised by written instrument, it must also be created by written instrument. Thus, an investigation should be made to determine the existence of a written grant of agency and that the exercise of the agency is reasonably within the purposes for which the agency was granted. If a document is executed under seal by an agent and the grant of agency is not under seal, the document executed by the agent is also deemed not under seal. Comment: The source of this Standard is Georgia Laws 1993, Page 457; (O.C.G.A. Section 10-6-2). This statute, which repealed the so-called “Equal Dignity Rule,” became effective July 1, 1993. Under prior law, documents executed by agents having greater formality than that of the document creating the agency were void. See, e.g., Thomason v. Wilson, 127 Ga. 141, 56 S.E. 302 (1906); Byrd v. Piha, 165 Ga. 397, 131 S.E. 48 (1927). Prior law was modified effective July 1, 1991 to provide that documents executed by an agent under seal were not invalid merely because the agency grant was not under seal (Ga. Laws 1991, Page 410).

8.5 Power of Attorney



If the execution of any document in the chain of title is made by an attorney-in-fact, it is better practice that the title examiner be able to verify that: the power of attorney is dated, properly executed, witnessed and recorded; empowers the attorney to execute the document; refers to the real property as specifically as possible; and at the time the attorney executed the document, the power of attorney had not been terminated of record by the principal, nor was there any evidence of record that the principal was deceased or mentally incompetent at that time, if the power of attorney provides that it terminates in the event of mental incompetency. A power of attorney is not terminated and it remains durable if the principal becomes mentally incompetent, unless the power of attorney provides to the contrary. If the examiner is dissatisfied with any of these facts surrounding the power of attorney, then the examiner should raise his/her objections to the client to permit the closing attorney to resolve the matter.

Comment: See the Comment above to Standard 8.4.

Comment: Attestation

In order for a power of attorney to be entitled to recording, it should be attested in the same manner as deeds. See Dodge v. American Freehold Land Mortg. Co. of London, 109 Ga. 394, 34 S.E. 672 (1899). As of July 1, 2015, to be entitled to be recorded, the power should be 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. See Section 4.5, infra.