2017 Georgia Code
Title 44 - Property
Chapter 1 - General Provisions
§ 44-1-18. (Effective January 1, 2018) Execution search prior to conveyance of property; certificate of clearance required; requirements for requests; binding effect; timing of information release; failure to comply; retention; criminal penalties; exceptions; requirements for certificate; regulatory authority

Universal Citation: GA Code § 44-1-18 (2017)

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(a) As used in this Code section, the term:
- (1) "Certificate of clearance" or "certificate" shall mean a document issued by the department affirming that a proper search has been conducted by the department and has yielded no active liens associated with an individual or entity, as provided for in Article 2 of Chapter 3 of Title 48.
- (2) "Current owner" means:
  - (A) The individual or entity vested with fee simple title to a parcel of real property; or
  - (B) Where fee simple title to a parcel of real property has been vested by:
    - (i) A joint tenancy with survivorship rights, then the survivor of such joint tenancy;
    - (ii) A deed in lieu of foreclosure, then the grantor of such deed;
    - (iii) An order of a probate court providing for:
      - (I) An executor, administrator, and granting an order declaring no administration necessary, then the deceased subject party of such probate proceeding; or
      - (II) A conservator, custodian, or guardian, then the ward subject party of such probate proceeding;
    - (iv) A deed into a trustee of a trust in which the party to an execution is the trustor, then:
      - (I) Where an execution attaches to the trustor prior to the trustor's conveyance to the trust, then the trustor; and
      - (II) Where an execution attaches to the trustor after the trustor's conveyance to the trust, then the trustee of such trust in his or her capacity as trustee and the trust, which trust shall obtain a distinct federal employee identification number;
    - (v) An order of a court providing:
      - (I) Award of real property to a spouse in a divorce proceeding, then the spouse so awarded fee simple title to the property;
      - (II) Award of real property in a quiet title action as provided in Code Section 23-3-40, et seq., and Code Section 23-3-60, et seq., then the successful petitioner of such action, provided proper service was effectuated upon the department; or
      - (III) Award of real property in an action to partition the property; where the property is physically partitioned into separate parcels, then the party vested with title to each such partitioned parcel; and where the property is ordered sold and the proceeds of such sale partitioned, then to each party to the extent of their interest in said proceeds;
    - (vi) The death of a life tenant, then the remaindermen of such life estate;
    - (vii) The termination of an executory trust, then the vestees of such trust;
    - (viii) The merger of entities wherein one or more of the entities is a party to an execution, then both the acquired and acquiring parties; or
    - (ix) Voluntary deed to a condemnor for compensation as provided in Title 22, then the grantor in such deed.
- (3) "Department" shall mean the Georgia Department of Revenue.
- (4) "Execution" shall mean either a state tax execution or a renewed state tax execution as defined in Article 2 of Chapter 3 of Title 48.
- (5) "Statement of lien" or "statement" shall mean a document issued by the department:
  - (A) Affirming that an active execution, as provided for in Article 2 of Chapter 3 of Title 48, is associated with the current owner;
  - (B) Providing the identification reference number assigned to the execution by the department; and
  - (C) Providing information to contact the department through the department's information management system for payoff information of such execution.

(b) Prior to the conveyance of real property upon which a title is transferred, any holder of a fee simple interest in real property, licensed attorney at law, or title insurance company shall be entitled to, upon request from the department:
- (1) A certificate of clearance; or
- (2) A statement of lien.

(c) The department shall only require a certificate of clearance for the current owner of the property to be conveyed at the time of the conveyance, and shall not require a certificate of clearance as to any previous owners or title holders of such property.

(d) Subject to the provisions of subsection (n) of this Code section, all executions against any party previously vested with title other than the current owner shall be of no force and effect as to the title of, and shall not be a lien against, any real property owned by the current owner.

(e) All requests for a certificate of clearance made to the department shall:
- (1) Be in writing;
- (2) State the name, address, e-mail address, and telephone number of the requestor;
- (3) State whether the requestor is the owner of the real property, an attorney at law, or a title insurance company;
- (4) State the name of the current owner of the real property;
- (5) State an e-mail address to which the certificate or statement can be directed; and
- (6) Provide a certification that the information provided therein is true and correct to the best of the requestor's knowledge.

(f) All requests shall be transmitted to the department by electronic means through the department's information management system or be delivered to the registered address of the department by certified mail, return receipt requested, or statutory overnight delivery. Any request transmitted by electronic means shall be considered received on the first business day following such transmission.

(g) The information specified in the certificate of clearance shall be binding upon the department as of the date of the certificate and for 30 days thereafter, during which time the department shall not issue any new executions against the current owner designated in the certificate.

(h) The department shall furnish a certificate of clearance or statement of lien, as applicable, to the requestor immediately upon request by electronic means through the department's information management system or, if not available through such system, to the e-mail address provided by the requestor within five business days of receipt of such request.

(i) The failure of the department to provide a certificate or statement within such five-day period shall cause any lien against real property arising from any execution against the current owner to be extinguished and to be of no force and effect as to the title. Such failure by the department to provide a certificate or statement shall be evidenced by a recorded affidavit, signed by a licensed attorney at law, containing a statement that the request was made pursuant to this Code section and that a certificate has not been issued by the department and would not be found in the records of the department or otherwise, with a copy of the acknowledgment of receipt of the request attached thereto.

(j) The certificate of clearance may be recorded in the superior court of the county where any real property owned by the current owner lies, and upon such recording shall be conclusive evidence that through that certain date 30 days after the date of the certificate no lien of the department attaches to the real property owned by the current owner referred to in such certificate.

(k) A copy of the certificate of clearance shall be maintained in the department's information management system and shall be identified by an identification number assigned to the certificate by the department, with such identification number being required to be entered on the real estate transfer tax declaration form as required in Code Section 48-6-4.

(l) If a statement of lien is issued and payoff information is acquired from the department pursuant to the reference information provided therein, such payoff information shall be binding upon the department as of the date such payoff information is received by any requesting party and for 30 days thereafter, during which time the department shall not issue any executions against the current owner designated in the statement, and upon payment in full of all sums due as set forth in any such payoff information:
- (1) All liens of the department against the real property owned by the current owner in existence as of the date of the statement shall be extinguished and all executions encumbering such real property shall be cancelled. The department shall provide proof of receipt of such payoff to the party remitting such payoff funds, and such proof may be recorded in the superior court of the county where the real property lies, and upon such recording shall be conclusive evidence that through the date of the statement no lien of the department attaches to any real property owned by the current owner referred to in such statement; and
- (2) If one or more executions are for any reason not set forth on such statement or payoff information, as to such omitted execution, said payment shall cause any lien against any real property owned by the current owner arising from any such omitted execution to be extinguished and to be of no force and effect as to the title.

(m) Any person who files a request in accordance with this Code section which request is fraudulent shall be guilty of a misdemeanor and shall be punished by imprisonment for not more than 12 months or by a fine of not less than $1,000.00 nor more than $5,000.00, or both.

(n) Noncompliance with any provision of this Code section shall preserve an execution properly executed and filed as provided for in Article 2 of Chapter 3 of Title 48 on real property on the date of any conveyance of such property.

(o) This Code section shall not apply to any conveyance listed below and the grantee of any such conveyance shall take title to the real property free and clear of any execution or lien created from such execution existing at the time of such conveyance:
- (1) A foreclosure of a mortgage or security deed, wherein such mortgage or security deed has priority over any execution;
- (2) A receiver or trustee in a bankruptcy proceeding;
- (3) A judicial order resulting from an action regarding condemnation, forfeiture, and judicial foreclosure, wherein the department was properly provided personal service of such action;
- (4) A tax sale performed by the Internal Revenue Service;
- (5) A year's support order by operation of law; or
- (6) A tax sale conducted by any sheriff, tax commissioner, or municipal levying officer in this state, provided that proper service was effectuated on the department in accordance with Code Section 48-4-45,
  and upon such conveyance all liens of the department against the real property owned by the current owner of such property as of the date of such conveyance shall be extinguished and all executions encumbering such real property shall be cancelled.

(p) The certificate of clearance shall be signed by the state revenue commissioner, or authorized agent thereof, and shall contain certifications from the department regarding:
- (1) Identification of the current owner;
- (2) That upon statutory request by a proper party in accordance with this Code section, an examination of the department records was made by the department;
- (3) That upon such examination by the department, the current owner as shown in the certificate has no active liens associated with such party by an execution or lien arising therefrom; and
- (4) The certificate is given pursuant to this Code section.

(q) The state revenue commissioner shall promulgate such rules and regulations not in conflict with this Code section as may be necessary and appropriate to implement and administer this Code section.

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