|
|
|
| |
|
|
| | Articles: (1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 ) |
| |
 |
| |
Partition and Quiet Title Actions in Georgia
Lewis E. Hassett
Morris, Manning & Martin, LLP
leh@mmmlaw.com
1. Partition.
Georgia law recognizes two types of partition actions, equitable
partition and statutory partition. This section discusses each type, as well
as the comparative advantages of each.
a. Equitable Partition.
In an equitable partition action, the court decides how to
partition property physically. See Gifford v. Courson, 224 Ga. 840, 165 S.E.2d
133 (1968). If the court decides that a physical partition is impracticable,
the court may order the property sold and the proceeds divided. Id.
Equitable partition has the advantage of simplicity. Not only
is the convoluted procedure of statutory partition avoided, but the familiar
rules of the Civil Practice Act govern. See generally Sikes v. Sikes, 233 Ga.
97, 209 S.E.2d 641 (1974). Additionally, because partition actions generally
are part of other disputes, the equitable partition procedure allows all issues
to be decided in one proceeding. Gorman v. Gorman, 239 Ga. 312, 236 S.E.2d 652
(1977). For example, it is not unusual for two parties to dispute the title
of the other but to request, alternatively, that property be partitioned if
the court finds that they are tenants in common.
Equitable partition is available only in the absence of an
adequate remedy of law or upon a showing that circumstances make equitable relief
more just and suitable. O.C.G.A. § 44-6-140; Larimer v. Larimer, 249 Ga. 500,
292 S.E.2d 71 (1982). The Georgia Supreme Court has strictly applied this concept
to deny equitable partition where statutory partition is available. See Burnham
v. Lynn, 235 Ga. 207, 219 S.E.2d 111 (1975). Generally, equitable partition
will be allowed only when presented as an integral part of other equitable claims.
b. Statutory Partition.
In a statutory partition action, a common owner of land petitions
to the superior court for a writ of partition in accordance with a detailed
statutory procedure. O.C.G.A. §§ 44-6-160 to 174. The statutory procedure must
be utilized, unless the remedy is held inadequate. See Burnham v. Lynn. Though
much more structured than an equity proceeding, the statutory proceeding can
result in fair relief as this statutory process provides for three possible
remedies depending upon the circumstances and desires of the parties.
Before seeking partition under the statute, the petitioner
must give at least twenty (20) days notice (no formal process required) to the
other parties concerned that a petition for partition is being submitted. O.C.G.A.
§ 44-6-162. Upon receiving the petition, the court can offer relief in the form
of an actual physical partition by issuing a writ for petition and then appointing
five partitioners who, after giving all parties eight (8) days notice, shall
partition the land in a just and equal manner. O.C.G.A. §§ 44-6-163, 164. After
the partition has been returned to the court, any party with an interest in
the land may raise an objection to the partition. O.C.G.A. § 44-6-165. If no
objections are raised, then the partition is final. If an objection is raised,
the matter is referred to a jury. Id.
The statute also provides two means of partition when the physical
division of the land is not practical. See O.C.G.A. §§ 44-6-166.1, 167. After
a petition has been filed, a party (other than the petitioner) may convince
the court that the property cannot be practically divided. If the court agrees,
the court appoints three appraisers to value the property. O.C.G.A. § 44-6-166.1.
Each owner may choose whether to accept the appraised value of his or her interest
or to pay the other owner(s) for the appraised values of their interests. If
none of the owners elect to sell his or her interest for the appraised value,
then the action is dismissed. If none of the owners elects to buy, then the
property will be sold at public sale with the proceeds divided. Id.; See Stone
v. Benton, 258 Ga. 539, 371 S.E.2d 864 (1988).
2. Quiet Title Actions.
As is the case with respect to partition, Georgia recognizes
an action in equity to quiet title, as well as a separate statutory proceeding.
This section discusses both procedures to quiet title, as well as the comparative
advantages of each.
a. Equitable Quiet Title.
In an equitable quiet title action, a court may cause to be
delivered up and cancel any instrument which casts a cloud over the complainant’s
title. O.C.G.A. § 23-3-40; Duffee v. Jones, 208 Ga. 639, 68 S.E.2d 699 (1952).
This action is commonly known as a conventional proceeding quia timet. A cloud
is an instrument that may give a claimant an apparent right to the property
of the current possessor, such as an invalid deed or an obscured boundary line.
O.C.G.A. § 23-3-42.
When an action is brought challenging an identified cloud,
the court determines the validity of the outstanding claim and issues a decree.
The relief sought will be granted where the invalidity of the specific instrument
sought to be canceled appears on its face or is revealed through outside facts.
O.C.G.A. § 23-3-41. In granting the relief, the court may cancel instruments,
construe them to avoid conflicts, grant injunctions, or use other available
equitable power. See 25 Encyclopedia of Georgia Law, Quieting Title, § 3 (1986
Rev.). This malleability of remedies is an advantage not found in the statutory
proceeding.
Generally, a party must be in possession of the property in
order to assert an equitable claim to quiet title. Smith v. Georgia Kaolin Co.,
Inc., 264 Ga. 755, 449 S.E.2d 85 (1994). In addition, a party must assert either
current record title or current prescriptive title. In re Rivermist Homeowners
Ass’n Inc., 244 Ga. 515, 260 S.E.2d 897 (1979). However, there are some exceptions
to this possession requirement such as when dealing with wild and unoccupied
lands or in cases where there is another distinct head of equity jurisdiction
sufficient to support the action. Vaughn v. Vaughn, 253 Ga. 76, 317 S.E.2d 201
(1984).
b. Statutory Quiet Title.
By means of a statutory quiet title action, the legislature
has provided an "efficient, speedy and effective way to adjudicate disputed
title claims." Cowron & Co. v. Shehadeh, 268 Ga. 383, 490 S.E.2d 82
(1997); O.C.G.A. §§ 23-3-60 to 72. Such a proceeding is often referred to as
a proceeding quia timet against all the world. Unlike an equitable quiet title
action, the statutory proceeding is brought against the property and all the
world, thus, eliminating the difficulty of determining the identity or residence
of all the possible claims. Smith v. Georgia Kaolin Co., Inc., 264 Ga. 755,
449 S.E.2d 85 (1994).
Any party who claims an interest in the property may bring
an action regardless of the fact that the party is not currently in possession.
Id.; O.C.G.A. § 23-3-61. However, a party must assert a claim of current record
title or current prescriptive title as in an equity action. Smith v. Georgia
Kaolin Co., Inc., 264 Ga. 755, 449 S.E.2d 85 (1994).
Upon receipt of the verified petition and property plat, the
court submits the information to an appointed special master who provides notice
to interested parties and determines the validity of the claims. O.C.G.A. §§
23-3-64, 65. Any party to the proceeding may demand a jury trial instead of
a special master’s determination. O.C.G.A. § 23-3-65. The court issues a decree
based upon the findings of the special master or jury that quiets title and
binds all parties known or unknown. O.C.G.A. § 23-3-67.
The statutory proceeding has the clear advantage over the equitable
action due to the breadth of the court’s decree. Owners, either currently in
possession or not, do not have to join the specific individuals that may have
outstanding claims to the property, as all outstanding claims are presumed adjudicated.
However, failure to follow the specific requirements of the statute can be a
bar to relief. Piedmont Cotton Mills, Inc. v. Woelper, 1998 Ga. LEXIS 272 (February
23, 1998)
|
|
|
|
| |
|
Copyright © 2010
Morris, Manning & Martin, LLP.
All rights reserved.
|
|
