GA Code § 44-2-20 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 2 - Recordation and Registration of Deeds and Other Instruments|Article 1 - Recording|Part 1 - Recording of Deeds and Other Real Property Transactions|§ 44-2-20. Recorded Affidavits Relating to Land as Notice of Facts Cited Therein; Filing and Recording

  Recorded affidavits shall be notice of the facts therein recited, whether taken at the time of a conveyance of land or not, where such affidavits show:   The relationship of parties or other persons to conveyances of land;   The relationship of any parties to any conveyance with other parties whose names are shown in the chain of title to lands;   The age or ages of any person or persons connected with the chain of title;   Whether the land embraced in any conveyance or any part of such land or right therein has been in the actual possession of any party or parties connected with the chain of title;   The payment of debts of an unadministered estate;   The fact or date of death of any person connected with such title;   Where such affidavits relate to the identity of parties whose names may be shown differently in chains of title;   Where such affidavits show the ownership or adverse possession of lands or that other persons have not owned such lands nor been in possession of same; or   Where such affidavits state any other fact or circumstance affecting title to land or any right, title, interest in, or lien or encumbrance upon land.  Any such affidavits may be made by any person, whether connected with the chain of title or not.      Reserved.   Affidavits referred to in subsection (a) of this Code section shall be filed by the clerk of the superior court of the county where the land is located and shall contain a caption referring to the current owner and to a deed or other recorded instrument in the chain of title of the affected land. The clerk of the superior court shall record such affidavits, shall enter on the deed or other recorded instrument so referred to the book and page number on which such affidavit may be recorded, and shall index same in the name of the purported owner as shown by such caption in both grantor and grantee indexes in deed records as conveyances of lands are recorded and indexed; and the clerk shall receive the same compensation therefor as for recording deeds to lands.    (Ga. L. 1955, p. 614, §§ 1-3; Ga. L. 1982, p. 3, § 44; Ga. L. 2011, p. 99, § 77/HB 24.)    The 2011 amendment,  effective January 1, 2013, substituted "Reserved" for the former provisions of subsection (b), which read: "(b) In any litigation over any of the lands referred to and described in any of the affidavits referred to in subsection (a) of this Code section in any court in this state or in any proceedings in any such court involving the title to such lands wherein the facts recited in such affidavits may be material, the affidavits or certified copies of the record thereof shall be admissible in evidence and there shall be a rebuttable presumption that the statements in said affidavits are true. The affidavits or certified copies thereof shall only be admissible as evidence in the event the parties making the affidavits are deceased; they are nonresidents of the state; their residences are unknown to the parties offering the affidavits; or they are too old, infirm, or sick to attend court."; and, in subsection (c), substituted "subsection (a)" for "subsections (a) and (b)" in the first sentence and substituted "the clerk" for "he" near the end of the last sentence. See Editor's notes for applicability.   Editor's notes.   - Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.   Law reviews.   - For article, "Some Rescission Problems in Truth-In-Lending, as Viewed From Georgia," see 7 Ga. St. B. J. 315 (1971). For article, "Evidence," see 27 Ga. St. U. L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 1 (2011).   JUDICIAL DECISIONS    Statute will be strictly construed by the court. Dollar v. Thompson, 212 Ga. 831, 96 S.E.2d 493 (1957) (see O.C.G.A. § 44-2-20).   Contents of affidavit.    - Properly recorded affidavit "shall" contain a caption showing the information enumerated in this statute. This is made mandatory by the use of the word "shall," rather than permissive language. Dollar v. Thompson, 212 Ga. 831, 96 S.E.2d 493 (1957) (see O.C.G.A. § 44-2-20).    Although affidavit gave proper statutory notice to the corporations as to the identity of the property owner, referred to the county grantor-grantee index, was properly witnessed and notarized, and contained other proper information, it did not settle the question of the identity of the property owner's heirs; thus, since a question of fact remained as to whether the affidavit afforded the corporations with actual or constructive notice as to a claim by the property owner's excluded spouse, the trial court should not have granted summary judgment to the corporations as to the claim of the one relative. Bowman v. Century Funding, Ltd., 277 Ga. App. 540, 627 S.E.2d 73 (2006).   Affidavit cancelled.    - Trial court properly granted a renter summary judgment and removed an affidavit asserting adverse possession filed by the owner of the first floor of a building with regard to a 1,350 square foot space on the second floor of the building as the renter established that title was acquired via a quit claim deed, that the renter changed the door at the base of the stairwell and had sole access to the second floor space, as well as posted no trespassing signs. The owner of the first floor failed to establish a continuous, exclusive, and uninterrupted possession of the space based on sporadic repairs made to the roof of the entire building. MEA Family Invs., LP v. Adams, 284 Ga. 407, 667 S.E.2d 609 (2008).   Recorded affidavits not conveyances.    - O.C.G.A. §§ 14-5-46 and14-5-47 were not applicable to a national church's action to quiet title in property held by a local church because there was no deed of conveyance to the trustees of the local church; two recorded title affidavits executed by lifetime attendees of the local church, one 79 years old and the other 80, asserted there had never been a question concerning the church's right of ownership of the property, but recorded affidavits relating to land were not conveyances or a legal proceeding by which one could attack the title to realty or cure a defect in the title, O.C.G.A. § 44-2-20. Kemp v. Neal, 288 Ga. 324, 704 S.E.2d 175 (2010).   Affidavit not part of property's chain of title.   - With respect to the issue of whether a Chapter 7 trustee was a bona fide purchaser under 11 U.S.C. § 544 of the debtor husband's interest, the fact that a corrective deed was cross-indexed with a special warranty deed did not pull the corrective deed into the property's chain of title. A bank's analogy to recordable affidavits under Georgia law was inapposite because, setting aside that the statute applied specifically to affidavits containing particular information, nothing in that statute stated that cross-indexing a recordable affidavit made the affidavit part of a property's chain of title. Bank of Am., N.A. v. Adams (In re Adams), 583 Bankr. 541 (Bankr. N.D. Ga. 2018).   Affidavit admissible only if affiant unavailable.    - Affidavits shall be admissible only when the person making the affidavit is not available as a witness for stated reasons. Dollar v. Thompson, 212 Ga. 831, 96 S.E.2d 493 (1957).   Affidavits describing relationship of parties and other facts affecting title to property.    - Because the allegations in the affidavits of title simply described either the relationship of the parties or other objective facts or circumstances affecting title to the property and nearly all of those allegations were asserted or confirmed by the property owner either in the property owner's answer to the bank's complaint, the property owner's counterclaim, or the property owner's brief on appeal, the trial court did not abuse the court's discretion in effectively granting the motion to quash the subpoena for the bank's counsel and in refusing to allow the property owner to question the bank's counsel. Cronan v. JP Morgan Chase Bank, N.A., 336 Ga. App. 201, 784 S.E.2d 57 (2016).    Cited in Parker v. Adamson, 109 Ga. App. 172, 135 S.E.2d 487 (1964); Jones v. Van Vleck, 224 Ga. 796, 164 S.E.2d 724 (1968); Crane v. Gaddis, 224 Ga. 804, 164 S.E.2d 844 (1968); Minor v. Ray, 122 Ga. App. 531, 177 S.E.2d 842 (1970).   RESEARCH REFERENCES   ALR.    - Necessity of showing authority or qualification of affiant in affidavit made in behalf of corporation, 3 A.L.R. 132.