USE OF THE RECORD
2.1 Period of Search
A record title covering a period of 50 years or more is considered sufficient to determine marketability; provided that the basis thereof is a warranty deed, one or more quitclaim deeds supported by a reasonable proof that they convey the full title, or a grant from the state, a probate proceeding in which the property is reasonably identifiable, a security deed if subsequently regularly foreclosed or any other instrument which shows of record reasonable probability of title and possession thereunder; provided further that the period actually searched does not refer to or indicate prior instruments or defects in title, in which case such prior instruments may be used in turn as a start, and that the period actually searched discloses instruments which confirm and carry forward the title to be established.
This Standard, however, shall not prevent an attorney from certifying a title as marketable based upon a search for a period of less than 50 years where the parties involved agree and accept less than 50 years, in which even the attorneys’ title certificate shall state the period covered thereby.
As a result of the recording process, the effective date of the various indices examined may not coincide with the date the record examination is conducted. The period between the record effective date and the examination date or document filing date of a subsequent transaction is commonly referred to as the “gap period.” This gap period varies by county and by indices within a county and in some instances this interim period may be substantial. When examining title and computing dates referred to in these Standards, the effect of the gap period must be taken into consideration. The oldest effective date of all record indices examined should be reported as the effective date of the attorney’s title certificate unless a report of the effective date of such record index is requested by the client or is of particular significance to the transaction upon which the record search will be relied.
Comment: In applying this Standard, it is necessary to trace the record title back to a “root” or “start,” which may be, and generally is, more than the 50 years back. Any defects in the record title subsequent to the date of recording of the “root” or “start” must be considered by the examiner. Thus, suppose the record shows a warranty deed from A to B in fee simple, recorded in 1914. The next instrument in the chain of record title is a conveyance of an easement across the land from B to X, recorded in 1916. The next instrument is a warranty deed from B to C in fee simple, recorded in 1954, in which the easement is not mentioned. In 1993, D who has contracted to purchase the land from C, employs an attorney to examine the title. The title examiner will have to go back to the deed of 1914 and will have too report that the record title is subject to the easement in favor of X created by the deed of 1916. In situations in which the parties engage and direct the attorney to certify title for a period less than 50 years, the attorney’s certification should contain a disclaimer to the following effect:
THIS CERTIFICATE OF TITLE IS BASED UPON A LIMITED EXAMINATION OF RECORD TITLE AND DOES NOT PURPORT TO CERTIFY THOSE MATTERS WHICH A FULL EXAMINATION OF RECORD TITLE WOULD REVEAL.
2.2 Extent of Search
In examining a title, the examiner is required to search only for properly indexed and recorded instruments in the chain of title. For this purpose the following instrument is outside the chain of title: (A) An instrument from a person in the chain of title filed for record after the date of filing for record of another instrument from the same person purported to part with the same interest; (B) An instrument from a person in the chain of title recorded prior to the date of the deed conveying title into that person in the absence of other circumstances which point to the existence of the instrument. The starting date for the search in the name of each new record title holder should be the date of the vesting instrument rather than the filing date.
Comment: The following example will illustrate the factual situation set out in example (A) of this Standard: A, having a good record title, conveys a tract of land to B in 1955. In 1956, A conveys the land to C, who at once records. C has actual notice of the Deed to B. In 1957, B records. In 1958, C conveys the land to D, who pays value and has no actual notice of the Deed to B. D at once records. D’s title is good. The title examiner is under no duty to search for the Deed to B.
The following example will illustrate the factual situation set out in example (B): A, who anticipates purchasing a tract of land from B executes a Security Deed conveying the said tract in favor of C to secure a loan made by C to A. The Security Deed is dated November 15, 1985 and recorded December 15, 1985. A acquires title to the tract from B by warranty deed dated January 15, 1986 and recorded January 20, 1986. On February 20, 1986, A conveys the tract to D who pays value and has no actual notice of the Security Deed to C. D at once records. D’s title is good. The title examiner is under no duty to search for the Security Deed to C.
Comment: See Insilco Corp. v. Carter, 245 Ga. 513, 265 S.E.2d 794 (1980); Middle Ga. R. Co. Inc. v. IDS Homes Inc., 231 Ga. 57, 200 S.E.2d 141 (1973).
2.3 Instruments by Strangers to the Record Chain of Title
An instrument executed by a person who is a stranger to the record chain of title at the time such instrument is recorded does not of itself make title unmarketable; however, such an instrument should give rise to additional investigation. Although the instrument from the stranger to the record chain of title does not necessarily render the title unmarketable, the attorney is under a duty to disclose this information to the client. Comment: The record shows that in 1950, a tract of land was conveyed by X to Y in fee simple. X is connected with a record chain of title running back to a grant from the state. A deed of the same tract from A to B, neither of whom appeared in the record chain of title, was recorded in 1955. The deed from A to B does not of itself make the title unmarketable. However, an investigation should be made to determine the reason for the stranger’s deed and the attorney has the duty of reporting this matter to the client. Record title is vested in the husband but the lender has consistently required the wife to join with the husband in executing all security deeds pertaining to the property. In examining title for a sale of the property by the husband, a title examiner should require a quitclaim deed form the wife for the purpose of divesting any and all interest which she might have or claim to the property by reason of having executed said security deeds.
2.4 Record of Expired Leases
In the absence of notice of renewal arising from possession, record, or otherwise, an examiner may omit from his opinion reference to a record lease or memorandum of lease when the term expressed in the lease has expired. It is not the function of the title examiner to certify as to possession. HOWEVER, the certifying attorney should always make exception in his opinion to rights of tenants in possession, if any, unless he is called upon to certify as to possession also. If asked to certify to possession and rights of tenants in possession, then proper inquiry should be made with present record owner and proper affidavits taken from him and any tenant actually in possession. If the purpose of the examination is related to concerns about environmental liability, an examiner should report all leases, whether expired or unexpired. Comment: In an environmental study, it is helpful to know the identities of lessees in both expired and unexpired leases, and the purposes for which the premises have been leased, since past or present uses may be associated with environmental problems, such as dry cleaners, service stations and the like.
2.5 Record of Expired Contract or Options
An examiner should report any and all contracts, options or memorandums thereof whether or not they appear to have expired and the closing attorney should decide whether to rely upon the record or seek additional proof.
Comment: It is recommended that proof of expiration be obtained at closing. Where the expiration date is more than one year prior to closing, an affidavit of the seller may be adequate. Where the expiration date is one year or closer to the date of the closing, additional proof of expiration should be obtained. It is better practice that this proof be in the form of a quitclaim deed from the optionee.
2.6 Age of Instruments
In determining whether to recommend that a corrective document be filed with respect to an instrument in the chain of title, the examiner should take into consideration, in addition to the other matters treated in these Standards, the period of time the instrument has been of record, applicable statutes of limitation, whether (subsequent to the recordation of the instrument in question) the property has been conveyed without (as far as the record title shows) correction or objection, and the practical feasibility of obtaining required signatures.
Comment: Although not statues of limitation, O.C.G.A. Section 44-5-163 provides that the period of possession for prescriptive title through adverse possession is twenty years and O.C.G.A. Section 44-5-164 provides that the period of possession for prescriptive title under color of title is seven years. The true owner may be barred by laches in applying for a cancellation of a cloud upon his/her title where the adverse claimant is in possession. Pierce v. Middle Ga. Land & Lbr. Co., 131 Ga. 99, 61 S.E. 1114 (1908). The seven-year limitation placed upon an action to set aside or cancel a deed by a court of equity is analogous to the period required for prescriptive title under color of title. Payton v. Daughtry, 223 Ga. 438, 156 S.E.2d 29 (1967).