GA Code § 36-9-3 (2021)
2021 Georgia Code|Title 36 - Local Government|Chapter 9 - County Property Generally|§ 36-9-3. Sale or Disposition of County Real Property Generally; Right of Certain Counties to Make Private Sale; Right of County to Negotiate and Consummate Private Sales of Recreational Set-Asides

    Except as otherwise provided in this Code section, the governing authority of any county disposing of any real property of such county 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 county shall have the right to reject any and all bids or cancel any proposed sale.The governing authority of the county shall cause notice to be published once in the official legal organ of the county 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 property to be sold.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.     Counties 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 county 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 county 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 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 county; 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 county, 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 county 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 county, in its sole discretion.     In the event the county 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.     This subsection shall not apply to:   Redemption of property held by any county under a tax deed; the granting of easements and rights of way; the sale, conveyance, or transfer of road rights of way; the sale, transfer, or conveyance to any other body politic; and any sale, transfer, or conveyance to a nonprofit corporation in order to effectuate a lease-purchase transaction pursuant to Code Section 36-60-13;   Any option to sell or dispose of any real property belonging to any county of this state if that option was granted by said county prior to March 17, 1959;   The sale of any real property belonging to any county in this state where the proper governing authority of the county advertised the property for ten consecutive days in the newspaper in which the sheriff's advertisements for the county are published, and where the sale was awarded thereafter to the highest and best bidder, in accordance with the terms of the advertisement, and an option given in accordance with the sale for the purchaser who had deposited a part of the purchase price to pay the balance within 365 days from the date of the execution of the option, where the sale was awarded and the option granted prior to May 1, 1961; or   The exchange of real property belonging to any county in this state 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 county; 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 county once a week for four weeks. The value of both the property belonging to the county 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 county.       In any county of the state having a population of 550,000 or more according to the United States decennial census of 1980 or any future such census, where the governing authority thereof has established or constituted an advisory commission, board, or authority to study and make recommendations for the future development, use, and sale of county owned property, the governing authority of such county shall have the right, with the advice and approval of such commission, board, or authority, to negotiate and consummate a private sale of any county owned property, notwithstanding the provisions of subsection (a) of this Code section. Where there is no commission, board, or authority established in such county for the particular class or type of property, the governing authority of such county shall nevertheless have the right to negotiate a private sale of any county owned property with the advice and approval of the grand jury.     Any county governing authority and the governing authority of any consolidated government may sell, grant, lease, rent, convey, or transfer any real property owned by the county or consolidated government, including real property dedicated or used as a park or recreation area, to the local board of education or other public educational institution for use as a site for a public school or other educational purpose. Any county governing authority and the governing authority of any consolidated government may sell, grant, convey, or transfer to the local board of education or other public educational institution licenses, easements, or lesser interests in such real property owned by the county or the consolidated government, including real property dedicated or used as a park or recreation area for such purposes. A county governing authority and the governing authority of any consolidated government are authorized to exchange real property, including real property dedicated or used as a park or recreation area, with the local board of education or other public educational institution for other real property for such purposes. Such a sale, grant, lease, rental, conveyance, or transfer may be made by negotiation between the governing authority and local board of education or other public educational institution without advertisement, bidding, auction, notice, publication, or referendum. This subsection shall not be construed to abrogate or impair any reverter provision or other condition of a sale, grant, conveyance, or transfer of real property to a county governing authority or governing authority of a consolidated government.   Prior to executing any sale, grant, lease, rental, conveyance, or transfer pursuant to the provisions of paragraph (1) of this subsection, the governing authority proposing such action shall hold a public hearing in the immediate vicinity of the affected property. Such hearing shall be advertised by posting conspicuous notice at the place of the hearing and at the affected property. The governing authority shall have at least one representative at the public hearing to receive the comments and concerns expressed and to report such comments and concerns to the governing authority.   After the public hearing provided in paragraph (2) of this subsection but before the action proposed under paragraph (1) of this subsection, the governing authority proposing the action shall hold at least one meeting to discuss the transaction in light of the comments and concerns expressed at the public hearing.     Notwithstanding subsection (a) of this Code section, where the governing authority has, prior to March 1, 1987, approved and recommended the sale or disposal of county owned real property containing an area of less than 20,000 square feet, the governing authority shall have the right to negotiate and consummate a private sale of such property, provided such sale is for at least the fair market value of the property. Notice of the intention of the county governing authority to make a private sale shall be published once a week for four weeks in the official organ of the county.   Notwithstanding subsection (a) of this Code section, where the governing authority has prescribed a system of recreational set-asides where developers are required to set aside a certain amount of property in each new subdivision for recreational purposes and where those recreational set-asides have been conveyed to the county governing authority at no cost to the county, the county governing authority shall have the right to negotiate and consummate a private sale of such property to a homeowners' association representing the majority of property owners in the subdivision where the recreational set-aside property is located, provided that the use of the property shall be for recreational purposes for a period of not less than five years from the date of the sale. Notice of intention of the county governing authority to make a private sale shall be published once a week for four weeks in the official organ of the county.   Notwithstanding any provision of this Code section to the contrary or any other provision of law or ordinance to the contrary, whenever any county determines that the establishment of a facility of the state or one of its authorities or other instrumentalities would be of benefit to the county, 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 county may sell or grant any of its real or personal property to the state or to any of its authorities or instrumentalities 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 county 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 county thereafter determines that all of the property is no longer needed because of a decision by the county to not construct the lake, that county 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 county shall notify the owner of such property at the time of its acquisition or, if the tract from which the county acquired its property has been subsequently sold, shall notify the owner of abutting land holding title through the owner from whom the county acquired its property. Any notice required pursuant to this subparagraph shall be in writing and delivered to the appropriate owner or by publication if such owner's address is unknown.Such owner shall have the right to acquire such property, as provided in this subsection.   If the original owner of the property at the time of the county's acquisition of such property is deceased, the original owner's spouse, child, or grandchild shall have the first opportunity to purchase the property which the county is disposing of pursuant to this subsection; provided, however, the owner's child shall have such right only if the owner's spouse is deceased or has waived his or her right to purchase the property, and the owner's grandchild shall have such right only if both the owner's spouse and childeither are deceased or have waived their right to buy the property.If the original owner's spouse is deceased and the original owner had more than one child or grandchild and such children or grandchildren have a right to purchase the property pursuant to this paragraph, then such children or grandchildren shall be entitled to purchase the property as tenants in common. The county shall place a notice of a sale proposed pursuant to this subparagraph once in the county legal organ.If after 45 days from the date of such publication the original owner's spouse, child, or grandchild has not come forward, or if the tract from which the county acquired its property has been subsequently sold, the county shall notify the owner of abutting land holding title through the owner from whom the county acquired its property as provided in subparagraph (A) of this paragraph.Publication pursuant to this subparagraph, if necessary, shall be in a newspaper of general circulation in the county where the property is located.     When an entire parcel acquired by the county 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 county decides the property is no longer needed.   If the right of acquisition is not exercised within 60 days after due notice, the county shall proceed to sell such property as provided in subsection (a) of this Code section. The county shall thereupon have the right to reject any and all bids, in its discretion, to readvertise, or to abandon the sale.     Notwithstanding any provision of this Code section or of any other law, ordinance, or resolution to the contrary, a county governing authority is authorized to sell and convey parcels of small or 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 land use plans, 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.     As used in this subsection, the terms "conservation easement" and "holder" shall have the meanings as set forth in Code Section 44-10-2.   Notwithstanding any provision of this Code section or of any other law, ordinance, or resolution to the contrary, whenever the governing authority of any county determines that the establishment of a conservation easement would be of benefit to the county and to its citizens by way of retaining or protecting natural, scenic, or open-space values of real property; assuring the availability of the property for agricultural, forest, recreational, or open-space use; protecting natural resources; maintaining or enhancing air or water quality; or preserving the historical, architectural, archeological, or cultural aspects of the property, 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 shall 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.      (Code 1933, § 91-804.1, enacted by Ga. L. 1959, p. 325, § 1; Ga. L. 1960, p. 1124, § 1; Ga. L. 1961, p. 195, § 1; Ga. L. 1962, p. 65, § 1; Ga. L. 1965, p. 239, § 1; Ga. L. 1971, p. 678, § 1; Ga. L. 1972, p. 560, § 1; Ga. L. 1981, p. 539, § 1; Ga. L. 1982, p. 2107, § 33; Ga. L. 1983, p. 3, § 27; Ga. L. 1987, p. 3, § 36; Ga. L. 1987, p. 1100, § 1; Ga. L. 1988, p. 676, § 1; Ga. L. 1990, p. 877, § 1; Ga. L. 1992, p. 1348, § 1; Ga. L. 1992, p. 1352, §§ 1, 2; Ga. L. 1994, p. 237, § 2; Ga. L. 1998, p. 1036, § 1; Ga. L. 2010, p. 746, § 1/HB 703; Ga. L. 2010, p. 1078, § 1/SB 390; Ga. L. 2018, p. 255, § 1/SB 397.)    The 2018 amendment,  effective July 1, 2018, added paragraph (a)(2); and redesignated former paragraph (a)(2) as present paragraph (a)(3).   Cross references.   - Disposition of property no longer needed for public road purposes, see T. 32, C. 7.   Code Commission notes.   - Ga. L. 1992, p. 1348, § 1, and Ga. L. 1992, p. 1352, § 2, both added a new subsection (g). Pursuant to Code Section 28-9-5, in 1992, the subsection as added by Ga. L. 1992, p. 1352, § 2 was redesignated as subsection (h).   JUDICIAL DECISIONS   Application.    - Trial court properly granted summary judgment to a county and purchaser because the prior owner of the property condemned by the county never had a binding contract with the county to re-purchase a remnant, unused portion and there was no conflict between O.C.G.A. §§ 32-7-3,32-7-4, and36-9-3(h) and the county's code amendment. Hubert Props., LLP v. Cobb County, 318 Ga. App. 321, 733 S.E.2d 373 (2012).   Heirs unable to repurchase because bona fide purchaser had purchased.    - Although a county failed to comply with O.C.G.A. § 36-9-2 by recording a transfer in the minutes when the county conveyed the county's interest in property, which the county had formerly acquired by eminent domain, to the county development authority, a subsequent purchaser was a bona fide purchaser without notice of this irregularity under O.C.G.A. § 23-1-20, so that the county's title was superior to that of the condemnee's heirs, who sought to repurchase the property under O.C.G.A. § 36-9-3(g)(3)(B). Darling Int'l, Inc. v. Carter, 294 Ga. 455, 754 S.E.2d 347 (2014).    Cited in John Doe v. Roe, 234 Ga. 127, 214 S.E.2d 880 (1975).   OPINIONS OF THE ATTORNEY GENERAL   Effect of local constitutional amendment.   - A local amendment which allows resale of county real estate upon such terms and conditions as the governing authority of that county shall deem proper supersedes this section. 1976 Op. Att'y Gen. No. U76-52.    County need not follow procedures set forth in this section  before conveying unserviceable county property to body corporate and politic. 1980 Op. Att'y Gen. No. U80-43.   Lease of property for school purposes.    - Counties and school districts have authority under subsection (c) of O.C.G.A. § 36-9-3 and O.C.G.A. § 20-2-520 to enter into intergovernmental contracts in which the county leases real property to the school board for use as a site for a public school or other educational purpose. 1998 Op. Att'y Gen. No. 98-13.   Applicability to board of education.   - This section has no application to sales of property, the title to which is vested in a county board of education. 1958-59 Op. Att'y Gen. p. 107.   Sale of property by county boards of education.   - County board of education may convey property no longer needed for school purposes by a private sale. 1982 Op. Att'y Gen. No. 82-31.    Since O.C.G.A. § 20-2-520 vests title to school property in the county boards of education, as opposed to the counties themselves, public sale requirements of O.C.G.A. § 36-9-3, which apply only to county property, do not govern disposition of such property. 1982 Op. Att'y Gen. No. 82-31.   RESEARCH REFERENCES   ALR.   - Power of governing body of county to dispose of county real estate in absence of specific statutory authority, 21 A.L.R.2d 722.