GA Code § 36-37-6 (2021)
2021 Georgia Code|Title 36 - Local Government|Chapter 37 - Acquisition and Disposition of Real and Personal Property Generally|§ 36-37-6. Disposition of Municipal Property Generally

    Except as otherwise provided in subsections (b) through (j) of this Code section, the governing authority of any municipal corporation disposing of any real or personal property of such municipal corporation shall make all such sales to the highest responsible bidder, either by sealed bids or by auction after due notice has been given. Any such municipal corporation shall have the right to reject any and all bids or to cancel any proposed sale. The governing authority of the municipal corporation shall cause notice to be published once in the official legal organ of the county in which the municipality is located or in a newspaper of general circulation in the community, not less than 15 days nor more than 60 days preceding the day of the auction or, if the sale is by sealed bids, preceding the last day for the receipt of proposals. The legal notice shall include a general description of the property to be sold if the property is personal property or a legal description of the property to be sold if the property is real property. If the sale is by sealed bids, the notice shall also contain an invitation for proposals and shall state the conditions of the proposed sale, the address at which bid blanks and other written materials connected with the proposed sale may be obtained, and the date, time, and place for the opening of bids. If the sale is by auction, the notice shall also contain the conditions of the proposed sale and shall state the date, time, and place of the proposed sale. Bids received in connection with a sale by sealed bidding shall be opened in public at the time and place stated in the legal notice. A tabulation of all bids received shall be available for public inspection following the opening of all bids. All such bids shall be retained and kept available for public inspection for a period of not less than 60 days from the date on which such bids are opened. The provisions of this subsection shall not apply to any transactions authorized in subsections (c) through (j) of this Code section.     Municipal corporations may retain the services of a Georgia licensed real estate broker to assist in the disposition of surplus real property; said brokerage services shall be procured by request for proposals in response to an issued solicitation. The proposal shall include the minimum stated broker qualifications and experience.   In the event a municipal corporation does retain the services of a qualified and experienced Georgia licensed real estate broker to assist in the disposition of surplus real property, the broker so retained shall:   Represent the municipal corporation and comply with the requirements of this Code section, including, but not limited to, issuing a call or request for sealed bids from the public and causing notice to be published once in the official legal organ of the county in which the municipality is located or in a newspaper of general circulation in the community, not less than 15 days nor more than 60 days preceding the day of the auction or, if the sale is by sealed bids, preceding the last day for the receipt of proposals. The legal notice shall include a legal description of the real property to be sold. The notice shall also contain a request for proposals and shall state the conditions of the proposed sale, the address at which bid blanks and other written materials connected with the proposed sale may be obtained, and the date, time, and place for the opening of bids;   Actively market the disposition of the real property;   Comply with all federal, state, and local laws;   Create a website which posts: the request for sealed bids; questions submitted by interested parties; responses to submitted questions as prepared by the municipal corporation; dates the real property will be made available for public inspection; public information regarding the property; and other related communication and marketing information;   Immediately forward the sealed bids to the governing authority of the municipal corporation, which shall open such bids at the specified date, time, and place;   Only serve in the capacity of a broker engaged by a seller as provided for in Code Section 10-6A-5. A real estate broker representing a municipal corporation shall be prohibited from working with or aiding a prospective buyer in connection with the disposition of real property for which the real estate broker was contracted; and   Agree to accept the agreed upon sales commission based on the highest responsive bid received as so adjudicated by the governing authority of the municipal corporation, in its sole discretion.     In the event the municipal corporation decides to reject all bids and not award the sale to any of the bidders, the broker shall agree to accept the minimum payment in lieu of the commission as so agreed upon by the parties in an engagement contract.       The governing authority of any municipal corporation is authorized to sell personal property belonging to the municipal corporation which has an estimated value of $500.00 or less and lots from any municipal cemetery, regardless of value, without regard to subsection (a) of this Code section. Such sales may be made in the open market without advertisement and without the acceptance of bids. The estimation of the value of any such personal property to be sold shall be in the sole and absolute discretion of the governing authorities of the municipal corporation or their designated agent.   Nothing in this Code section shall prevent a municipal corporation from trading or exchanging real property belonging to the municipal corporation for other real property where the property so acquired by exchange shall be of equal or greater value than the property previously belonging to the municipal corporation; provided, however, that within six weeks preceding the closing of any such proposed exchange of real property, a notice of the proposed exchange of real property shall be published in the official organ of the municipal corporation once a week for four weeks. The value of both the property belonging to the municipal corporation and that to be acquired through the exchange shall be determined by appraisals and the value so determined shall be approved by the proper authorities of said municipal corporation.   The governing authority of any municipal corporation is authorized to sell real property in established municipal industrial parks or in municipally designated industrial development areas for industrial development purposes without regard to subsection (a) or (b) of this Code section.     This Code section shall not apply to any municipal corporation which has a municipal charter provision setting forth procedures for the sale of municipal property and existing as of January 1, 1976, so long as such charter provision thereafter remains unchanged and as long as such charter provision contains the minimum notice requirements as set forth in subsection (a) of this Code section.   This Code section shall not apply to the disposal of property:   Which is acquired by deed of gift, will, or donation and is subject to such conditions as may be specified in the instrument giving or donating the property;   Which is received from the United States government or from this state pursuant to a program which imposes conditions on the disposal of such property;   Which is disposed of pursuant to the powers granted in Chapter 61 of this title, the "Urban Redevelopment Law," or a homesteading program;   Which is sold or transferred to another governing authority or government agency for public purposes; or   Which is no longer needed for public road purposes and which is disposed of pursuant to Code Section 32-7-4.       Notwithstanding any provision of this Code section or of any other law or any ordinance to the contrary, the governing authority of any municipal corporation is authorized to sell real property within its corporate limits for museum purposes to either a public authority or a nonprofit corporation which is classified as a public foundation (not a private foundation) under the United States Internal Revenue Code, for the purpose of building, erecting, and operating thereon a museum or facility for the development or practice of the arts. Such sale may be made in the open market or by direct negotiations without advertisement and without the acceptance of bids. The estimation of the value of any property to be sold shall be in the sole and absolute discretion of the governing authority of the municipality or its designated agent; provided, however, that nothing shall prevent a municipality from trading or swapping property with another property owner if such trade or swap is deemed to be in the best interest of the municipality.   Notwithstanding any provision of this Code section or of any other law or ordinance to the contrary, the governing authority of any municipal corporation is authorized to sell and convey parcels of narrow strips of land, so shaped or so small as to be incapable of being used independently as zoned or under applicable subdivision or other development ordinances, or as streets, whether owned in fee or used by easement, to abutting property owners where such sales and conveyances facilitate the enjoyment of the highest and best use of the abutting owner's property without first submitting the sale or conveyance to the process of an auction or the solicitation of sealed bids; provided, however, that each abutting property owner shall be notified of the availability of the property and shall have the opportunity to purchase said property under such terms and conditions as set out by ordinance.   Notwithstanding any provision of this Code section to the contrary or any other provision of law or ordinance to the contrary, whenever any municipal corporation determines that the establishment of a facility of the state or one of its authorities or other instrumentalities or of a bona fide nonprofit resource conservation and development council would be of benefit to the municipal corporation, by way of providing activities in an area in need of redevelopment, by continuing or enhancing local employment opportunities, or by other means or in other ways, such municipal corporation may sell or grant any of its real or personal property to the state or to any of its authorities or instrumentalities or to a bona fide nonprofit resource conservation and development council and, further, may sell or grant such lesser interests, rental agreements, licenses, easements, and other dispositions as it may determine necessary or convenient. These powers shall be cumulative of other powers and shall not be deemed to limit their exercise in any way.     As used in this subsection, the term "lake" means an impoundment of water in which at least 1,000 acres of land were to be submerged.   Notwithstanding any provision of this Code section or any other law to the contrary, whenever any municipality has acquired property for the creation or development of a lake, including but not limited to property the acquisition of which was reasonably necessary or incidental to the creation or development of that lake, and the governing authority of such municipality thereafter determines that all or any part of the property or any interest therein is no longer needed for such purposes because of changed conditions, that municipality is authorized to dispose of such property or interest therein as provided in this subsection.   In disposing of property, as authorized under this subsection, the municipality shall notify the owner of such property at the time of its acquisition or, if the tract from which the municipality acquired its property has been subsequently sold, shall notify the owner of abutting land holding title through the owner from whom the municipality acquired its property. The notice shall be in writing delivered to the appropriate owner or by publication if such owner's address is unknown; and such owner shall have the right to acquire, as provided in this subsection, the property with respect to which the notice is given. Publication, if necessary, shall be in a newspaper of general circulation in the municipality where the property is located.   When an entire parcel acquired by the municipality or any interest therein is being disposed of, it may be acquired under the right created in paragraph (3) of this subsection at such price as may be agreed upon, but in no event less than the price paid for its acquisition. When only remnants or portions of the original acquisition are being disposed of, they may be acquired for the market value thereof at the time the municipality decides the property is no longer needed.   If the right of acquisition is not exercised within 60 days after due notice, the municipality shall proceed to sell such property as provided in subsection (a) of this Code section. The municipality shall thereupon have the right to reject any and all bids, in its discretion, to readvertise, or to abandon the sale.       As used in this subsection, the term:   "Conservation easement" shall have the same meaning as set forth in Code Section 44-10-2.   "Holder" shall have the same meaning as set forth in Code Section 44-10-2.     Notwithstanding any provision of this Code section or of any other law or ordinance to the contrary, whenever the governing authority of any municipal corporation determines that the establishment of a conservation easement would be of benefit to the municipal corporation and to its citizens, such governing authority may sell or grant to any holder a conservation easement over any of its real property, including but not limited to any of its real property set aside for use as a park. These powers shall be cumulative of other powers and shall not be deemed to limit their exercise in any way; provided, however, that a conservation easement may not be created, granted, or otherwise conveyed for the purpose of preventing, frustrating, or interfering with the exercise of the power of eminent domain by any public utility or other entity authorized to exercise the power of eminent domain.       Notwithstanding any provision of this Code section or any other law to the contrary, the General Assembly by local Act may authorize the governing authority of any municipal corporation to lease or enter into a contract for a valuable consideration for the operation and management, and renewals and extensions thereof, of any real or personal property comprising fairgrounds, ballfields, golf courses, swimming pools, or other like property used primarily for recreational purposes for a period not to exceed five years to a nonprofit corporation which is qualified as exempt from taxation under the provisions of Section 501(c)(3) of the Internal Revenue Code of 1986 that will covenant to use and operate the property for annual regional fair purposes or to continue the recreational purpose for which the property was formerly used and intended on a nondiscriminatory basis for the use and benefit of all citizens of the community; provided, however, that nothing in this subsection shall have the effect of authorizing alienation of title to such property in derogation of rights, duties, and obligations imposed by prior deed, contract, or like document of similar import or that would cause the divesting of title to property dedicated to public use and not subsequently abandoned; and provided further, that the lessee or contractee under a management contract shall not mortgage or pledge the property as security for any debt or incur any encumbrance that could result in a lien or claim of lien against the property. The lease or management contract may provide for options to renew such lease or management contract for not more than three renewal periods and each such renewal period shall not be greater than the original length of such lease or management contract. As a condition of any lease or management contract, the lessee or contractee shall provide and maintain in force and effect throughout the term of such lease or management contract sufficient liability insurance, in an amount not less than $1 million per claim, no aggregate, naming the municipality as a named insured; shall assume sole responsibility for or incur liability for any injury to person or property caused by any act or omission of such person while on the property; and shall agree to indemnify the municipality and hold it harmless from any claim, suit, or demand made by such person. As an additional condition of any such lease or management contract, the lessee or contractee shall provide to and maintain with the municipality a current copy of the liability insurance policy, including any changes in such policy or coverages as such changes occur, and shall provide proof monthly in writing to the municipality that the lessee or contractee has in force and effect the liability insurance required by this paragraph which the municipality shall retain on file. As a further condition of any lease or management contract, the lessee or contractee shall agree to indemnify the municipality and hold it harmless from any claim, suit, or demand arising out of any improvements to the property or any indebtedness or obligations incurred by the lessee or contractee in making any such improvements to such property. When the lessee or contractee charges any person to enter or go upon the land for the purpose of attending the annual regional fair or for attending or participating in recreational purposes, the consideration received by the municipal corporation for the lease or management contract shall not be deemed a charge within the meaning of Article 2 of Chapter 3 of Title 51.   Any governing authority entering into a lease as provided in paragraph (1) of this subsection shall have the right unilaterally to terminate such lease after giving three months' notice of its intention to do so.   Any lease entered into as provided in paragraph (1) of this subsection shall be automatically terminated upon conviction of the lessee or contractee for any offense involving the conduct of unlawful activity. In such event, any improvements to the property made by the lessee shall be forfeited. The municipality shall not be liable in any manner or subject to suit for any indebtedness or other obligations of the lessee or contractee associated with any such improvements to the property and shall take such improvements free and clear of any such indebtedness or other obligations.       Where not otherwise authorized by its charter or other applicable law, the governing authority of any municipal corporation may lease or enter into a contract for valuable consideration for the use, operation, or management of any real or personal property of the municipal corporation pursuant to the power granted by this subsection. The authority of any municipal corporation granted pursuant to its charter or other applicable law to enter into leases or contracts for the use, operation, or management of any real or personal property of the municipal corporation shall not be affected by this subsection and it shall not apply to any contracts or leases entered into pursuant to such authority. Where a municipal charter or other applicable law provides no authorization for leasing or contracting for the use, operation, or management of any real or personal property of the municipal corporation and this subsection is to be used as authorization for that purpose, the following shall apply:   Any lease or contract for the use, operation, or management of any real or personal property for longer than 30 days shall be by sealed bids or by auction as provided in subsection (a) of this Code section. Easements and licenses for the use of municipal property in connection with construction projects of a municipal corporation shall be exempt from this subparagraph, provided that their term is less than one year;   Nothing in this subsection shall have the effect of authorizing alienation of title to such property in derogation of rights, duties, and obligations imposed by prior deed, contract, or like document of similar import or shall cause the divesting of title to property dedicated to public use and not subsequently abandoned; and   The lessee or contractee shall not mortgage or pledge the property, lease or contract the property as security for any debt, or incur any encumbrance that could result in a lien or claim of lien against the property, lease, or contract.     Any lease or contract for the use, operation, or management of any real or personal property entered into pursuant to this subsection and for longer than 30 days shall contain the following terms:   The lessee or contractee shall provide and maintain in force in effect throughout the term of such lease or contract sufficient liability insurance, in an amount not less than $1 million per claim, no aggregate, naming the municipality as a named insured;   The lessee or contractee shall assume sole responsibility for or incur liability for any injury to person or property caused by any act or omission of any person while on the property and shall agree to indemnify the municipality and hold it harmless from any claim, suit, or demand made by any person; and   The lessee or contractee shall agree to indemnify the municipality and hold it harmless from any claim, suit, or demand arising out of any improvements to the property or any indebtedness or obligations incurred by the lessee or contractee in making any such improvement to such property.       The initial term of a lease or contract for the use of real property entered into pursuant to this subsection shall be no longer than five years and there may be one renewal period of no longer than five years, after which the lease or contract shall again be subject to sealed bids or auction.   When the lessee or contractee charges any person to enter or go upon the real property for recreational purposes, the consideration received by the municipal corporation for the lease or contract shall not be deemed a charge within the meaning of Article 2 of Chapter 3 of Title 51.   Where real property is leased pursuant to this Code section for the erection of telecommunications towers, the initial term of a lease or contract for the use of such real property shall be no longer than ten years and there may be one renewal period of no longer than ten years, after which the lease or contract shall again be subject to sealed bids or auction; provided, however, that such lease shall also include provisions for the removal of the telecommunications tower structure.     Where this subsection is applicable, it shall apply to any lease or contract entered into or renewed on or after July 1, 2011. This subsection shall not affect any provisions of subsection (k) of this Code section.   Nothing contained in this Code section shall be construed so as to expand the powers of eminent domain or to otherwise provide for additional eminent domain authority for any municipal corporation. The ability for a governing authority of a municipal corporation to exercise eminent domain shall be subject to the limitations enumerated in Chapter 2 of Title 22 and the Georgia Constitution.     Notwithstanding any other provision of law to the contrary, a city may exchange property dedicated as a city park with an institution owning property in or abutting a federal National Historic Site for use in connection with such property, provided that the city receives property in fee simple that is of equal or greater acreage as the city property exchanged and that the city immediately dedicates the property as a public park.    (Code 1933, § 69-318, enacted by Ga. L. 1976, p. 350, § 1; Ga. L. 1978, p. 890, §§ 1, 2; Ga. L. 1981, p. 831, § 1; Ga. L. 1987, p. 191, § 9; Ga. L. 1987, p. 1051, § 2; Ga. L. 1989, p. 1418, § 1; Ga. L. 1990, p. 877, § 2; Ga. L. 1992, p. 1348, § 2; Ga. L. 1993, p. 795, § 1; Ga. L. 2001, p. 863, § 1; Ga. L. 2004, p. 1076, § 1; Ga. L. 2005, p. 60, § 36/HB 95; Ga. L. 2010, p. 1078, § 2/SB 390; Ga. L. 2011, p. 240, § 3A/HB 280; Ga. L. 2012, p. 775, § 36/HB 942; Ga. L. 2013, p. 647, § 1A/HB 189; Ga. L. 2018, p. 255, § 2/SB 397.)    The 2018 amendment,  effective July 1, 2018, designated the existing provisions of subsection (a) as paragraph (a)(1); substituted "subsections (c) through (j)" for "subsections (b) through (j)" in the last sentence of paragraph (a)(1); and added paragraph (a)(2).   Cross references.   - Discretion of governing body as to management and disposition of property, § 36-30-2.    Acquisition of facilities, § 36-34-3.   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 2004, in paragraph (j)(1) (now paragraph (k)(1)), in the first sentence "purpose for which" was substituted for "purpose to which", "effect of" was substituted for "affect of", in the third sentence "insured" was substituted for "insured,", "act or omission" was substituted for "act of omission", "property;" was substituted for "property,", and "of Chapter 3" was inserted at the end.   Editor's notes.   - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provided that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.   Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.   Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.   Law reviews.   - For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 69-203 and former Ga. L. 1956, p. 22 are included in the annotations for this Code section.    Property held by municipality for governmental or public uses cannot be sold without express legislative authority, but must be devoted to the use and purpose for which the property was intended. Harper v. City Council, 212 Ga. 605, 94 S.E.2d 690 (1956) (decided under former Ga. L. 1956, p. 22 and local law).   Distinction between land held in governmental and proprietary capacities.    - There is a clear distinction between property purchased by a municipal corporation and held for use by the municipal corporation as an entity, or in the municipality's proprietary capacity, and property purchased by the city for the public use and benefit of the municipality's citizens. As to property acquired for strictly corporate purposes and held in the municipal corporation's proprietary capacity, the power to dispose is unquestioned, but as to the latter, in the absence of express legislative authority, it is only when the public use has been abandoned or the property has become unsuitable or inadequate for the purpose to which the property was dedicated that the city has the power to dispose of such property. Harper v. City Council, 212 Ga. 605, 94 S.E.2d 690 (1956) (decided under former Ga. L. 1956, p. 22 and local law).    Property held by a municipality for governmental or public uses cannot be sold without express legislative authority, but must be devoted to the use and purpose for which the property was intended. The rule is otherwise as to property held by a municipality in the municipality's proprietary or private capacity when not devoted to any specific public use. Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396 (1953) (decided under former Code 1933, § 69-203).    Though land be bought for public use, if not actually used for such purpose it cannot be said to be held by municipality affected by public trust, and may be sold. Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396 (1953) (decided under former Code 1933, § 69-203).    When property held by municipality for governmental or public use is abandoned as to such use, the municipality may sell the property without express legislative approval. Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396 (1953) (decided under former Code 1933, § 69-203).   Power to swap and trade.    - General Assembly did not intend by minor rearrangement of O.C.G.A. § 36-37-6 to expand the powers of municipalities, or to relieve the municipalities of the bidding requirements of the 1976 act, or to alter settled principles of the common law restricting the alienation of dedicated public lands; the power to swap and trade cemetery lots and personal property of limited value remains just that, and nothing more. Tuten v. City of Brunswick, 262 Ga. 399, 418 S.E.2d 367 (1992).    Proposed land exchange between city and church was ultra vires because the city lacked the power to dispose of the land by virtue of subsection (c) of O.C.G.A. § 36-37-6 which is not so substantive or reliable an expression of legislative intent as to vitiate the bidding requirements of subsection (a) nor to generate a radical inflation of subsection (b) to authorize a city to "swap" or "trade" all of the city's public property. Tuten v. City of Brunswick, 262 Ga. 399, 418 S.E.2d 367 (1992).   No lease of park for term of years for private gain.    - Weight of authority is that a municipal park is a public utility, and a portion thereof cannot be leased for a term of years for private gain. Harper v. City Council, 212 Ga. 605, 94 S.E.2d 690 (1956) (decided under former Ga. L. 1956, p. 22 and local law).   Preexisting option contracts.    - O.C.G.A. § 36-37-6 has no application to the exercise of an option to purchase real estate which was granted prior to the statute's enactment. Silver v. City of Rossville, 253 Ga. 13, 315 S.E.2d 898 (1984).    Cited in DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985).   OPINIONS OF THE ATTORNEY GENERAL   Lease to private entity prohibited absent express authority.   - Property held by a municipality for the public use and the benefit of the municipality's citizens cannot be leased to a private entity without express legislative authority, in the absence of other applicable exceptions. 1992 Op. Att'y Gen. No. U92-9.   Sale of donated property exempted.    - Disposition of real property donated to a municipality upon the approved condition for use as a hospital is excepted by O.C.G.A. § 36-37-2 from the sealed bid or auction procedure of O.C.G.A. § 36-37-6; however, city officials must exercise the utmost good faith, fidelity, and integrity to obtain the best price in any sale of the property. 1984 Op. Att'y Gen. No. U84-20.   RESEARCH REFERENCES   Am. Jur. 2d.   - 14 Am. Jur. 2d, Cemeteries, §§ 3, 9. 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 485 et seq., 515.   C.J.S.   - 63 C.J.S., Municipal Corporations, §§ 1152 et seq., 1162. 64A C.J.S., Municipal Corporations, § 2493.   ALR.    - Sufficiency of compliance with condition of sale or lease by municipality of public utility plants, 52 A.L.R. 1052.    Lease of property by municipality or other political subdivision, with option to purchase same, as evasion of constitutional or statutory limitation of indebtedness, 71 A.L.R. 1318; 145 A.L.R. 1362.    Lease or sale of municipal plant or contract therefor as affecting right of municipality to compete, 118 A.L.R. 1030.    Implied or inherent power of municipal corporation to sell its real property, 141 A.L.R. 1447.   Right and capacity of taxpayer to attack sale by municipal corporation or other taxing unit of its property, 17 A.L.R.2d 475.   Power of municipal corporation to exchange its real property, 60 A.L.R.2d 220.   Power of municipality to sell, lease, or mortgage public utility plant or interest therein, 61 A.L.R.2d 595.   What constitutes newspaper of "general circulation" within meaning of state statutes requiring publication of official notices and the like in such newspaper, 24 A.L.R.4th 822.