Bulletin: GA2023002

Dear Associates:

The following are summaries of some of the bills passed during the 2023 legislative session which are of interest to the title industry:

Senate Bill 90 which was undoubtedly enacted in response to liens filed by MV Realty, among other things adds to O.C.G.A. 10-6A-10 new subsection (b) which indicates that a brokerage agreement for residential property shall not purport to be a covenant running with the land or to be binding on future owners of interest in the subject property, shall not allow for assignment of the right to provide service without notice and agreement of the owner of the subject property, or shall not purport to create a recordable lien, encumbrance or other real property security interest. Any such lien, encumbrance, or other real property security interest, if recorded, shall be void and unenforceable. This act will become effective on January 1, 2024. but it is not retroactive. Therefore, any liens filed by MV Realty or similar type liens filed by others prior to January 1, 2024, will still require a release.

House Bill 182 which became effective upon signing by the governor on May 4, 2023, as to the relevant portion of the bill referenced herein and is retroactive as to all deeds and other instruments from July 1, 2015, revised Georgia’s remedial statute, O.CG.A. 44-2-18, to allow a deed which is not attested by a notary public or one of the other officers allowed under O.C.G.A. 44-2-15 to be allowed to be recorded upon the affidavit of a subscribing witness which shall testify to the execution of the deed and its attestation according to law. This statute was enacted as a result of the legislative correction recommended by Pingora Loan Servicing, LLC. v. Scarver (In Re: Lindstrom), US Court of Appeals 11th Circuit, 30 F.4th 1086 (2022), which pointed out that under Georgia’s remedial statute prior to this revision only a deed that was neither attested by nor acknowledged before a notary may be recorded upon the affidavit of a subscribing witness, which created the precarious position that a deed acknowledged before a notary was not good enough to be recorded but too good to be saved by the statute.

House Bill 444 which shall apply to any lis pendens filed on or after July 1, 2023, amends the statutes relating to the filing of lis pendens (O.C.G.A. 44-14-610 through 612) and provides that any person with a claim of a legal or equitable interest in the property may file a motion in the underlying civil action to object to the filing of the lis pendens, the court upon its own motion or upon the motion of a party to the underlying action may enter an order to cancel the lis pendens upon a showing that the real property is no longer involved in the pending action, and upon dismissal, settlement or final judgment in the underlying civil action or upon order of the court, the party initiating the filing of the lis pendens must file a release of the lis pendens.

House Bill 80 which will become effective on July 1, 2023, adds a new code section O.C.G.A. 9-1-1 which provides that declarations given under penalty of perjury under the law of Georgia when the affiant is outside the United States or United States territory shall have the same effect as sworn affidavits in certain circumstances. However, specifically excepted from this are, among other things, instruments expressly required by statute to comply with O.C.G.A. 44-2-15, which provides requirements for the recordability of deeds and other real property transaction documents.

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

For online viewing of this and other bulletins, please log onto www.vuwriter.com.