Georgia Deeds & Mortgages Explained


In a real estate purchase and sale transaction, the deed accomplishes two important things.  First, the deed mechanically makes the buyer the new, legal owner of the property while specifically making the seller no longer the owner of the property.  In legal parlance, the buyer's deed vests title in the buyer and divests the interests of the seller. Secondly, the deed establishes what liability will remain with the seller over future years, if any, should certain defects arise. Because liability is a major concern for both buyers and sellers, the quality (or type) of deed is always specified in a competently drafted purchase and sale agreement.

The following deed types are the more common instruments used in Georgia, not all of which are customarily used in the context of a purchase and sale transaction—

Commonly Used Deeds
  • Warranty Deed
  • Limited Warranty Deed
  • Special Warranty Deed
  • Builder's Deed
  • Quitclaim Deed
Estate Deeds
  • Executor's Deed
  • Administrator's Deed
  • Deed of Assent
  • Trustee's Deed
Other Deeds
  • Foreclosure Deed
  • Deed Under Power
  • Spousal Deed
  • Deed of Gift
  • Transfer-on-Death Deed
Georgia Mortgages
  • Security Deed
  • Deed to Secure Debt
  • Security Instrument


IMPORTANT NOTE.
 In Georgia, when an Owner's Title Policy is acquired at closing, the policy insures the purchaser regardless of the quality (type) of deed delivered at closing.
New in 2024- "Transfer-on-Death" Deed
Just passed by the Georgia Legislature in 2024 is a new form of deed called a "Transfer on Death" Deed. (OCGA §44-17-1 et seq).

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Adding a Co-Owner to Title?
Any party desiring to change title should speak with a reputable Georgia real estate attorney first.  Changing ownership by common method of quitclaim deeding has serious potential consequences to any title insurance policies in effect, since conveyances subsequent to issuance of a title policy may void coverage.

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Questions? Speak with a Real Estate Lawyer
CHRIS PAHL
Attorney at Law

945 E Paces Ferry Road
Resurgens Plaza
Atlanta, GA 30326
Telephone +1(678)448-4148






Commonly Used Deeds in Georgia
Did you know that the Georgia Association of Realtor Purchase and Sale Agreement form was changed in 2014 to reduce the quality of title required by a seller? Instead of requiring a seller to deliver by "Warranty Deed," a seller is now only required to delivery by "Limited Warranty Deed."

Read more about the various types of deeds used in Georgia.
(Click on Any Header for Detailed Information)
+ Warranty Deed
The Warranty Deed delivers the highest quality of title.  In a Warranty Deed, the grantor agrees to warrant and defend the grantee against a defect in title.  So long as each successive conveyance is by Warranty Deed, an original grantor may continue to be liable to successors.  In practicality, often when a defect is discovered, the party giving the warranty is either long gone or unable to pay.  Therefore, title insurance becomes an indispensable mechanism for a purchaser in ensuring unencumbered title.  An owner's title insurance policy continues to be valuable, even after the property has re-sold, since the grantor may retain liability for the warranties to any new purchaser.
+ Limited Warranty Deed
The 2014 GAR Purchase and Sale Agreement calls for this type of deed. Historically, the Limited Warranty Deed has been used only by corporate entities, such as builders or developers in order to limit the seller ("grantor") from liability. This type of deed does not contain general warranties of title, but instead warrants against only those liens or encumbrances created by the seller.
+ Special Warranty Deed
The Special Warranty Deed is generally used when a government entity is selling a foreclosed property.  Other than name, this deed is the same as the Limited Warranty Deed.  
+ Builder's Deed
The Builder's Deed is sometimes seen when a builder or developer is selling newly built homes.    Other than name, this deed is the same as the Limited Warranty Deed.  
+ Quitclaim Deed
The Quitclaim Deed (also "Quit Claim" Deed), often incorrectly referred to as the "Quick Claim Deed", conveys only that interest held by the Grantor, if any at all.  Not all Quitclaim Deeds are drafted alike.  Some Quitclaim Deeds contain a warranty that the Grantor has not already given away his interest.  Other Quitclaim Deeds, such as the "Deed of Gift" often omit such warranty and convey whatever interest the Grantor holds, if any at all.
 
NOTE:  A form of the Quitclaim Deed is a "Deed of Release" used to reconvey property to the owner, where a lender has a security deed or deed to secure debt securing a loan against the real estate.  The quitclaim instrument is convenient when the original security instrument is unable to be located.  In lieu of an original security deed marked "cancelled" or a Quitclaim Release, a separate lien release instrument may be used in Georgia.


Estate Deeds
Clicking on any deed type below will open a description for that deed.
+ Executor's Deed
An Executor's Deed conveys interest out of an Estate where an Executor has been appointed by the Probate Court to carry out instructions in the deceased person's Last Will and Testament.
All Deeds in this category are essentially a type of Quitclaim Deed since they merely convey property that is in an estate, without general warranties of title.
+ Administrator's Deed
An Administrator's Deed conveys interest out of an Estate where an Administrator has been appointed by the Probate Court.  Administration of an Estate comes in two varieties.  If a person dies without a Last Will and Testament, the Probate Court appoints an Administrator to act on behalf of the Estate.  However, sometimes a person dies with a Last Will and Testament, but the named Executor is unable or unwilling to assume the responsbilities of an Executor.  In this situation, the Probate Court Judge will appoint an Administrator.  A deed executed by an Administrator in these circumstances is called an Administrator's Deed de Bonis Non Cum Testament Annexo (DBNCTA) which is an Administrator's Deed with the Last Will and Testament Annexed.
All Deeds in this category are essentially a type of Quitclaim Deed since they merely convey property that is in an estate, without general warranties of title.
+ Deed of Assent
This type of Deed is executed by the Executor when the transfer is made per specific instruction contained the Last Will and Testament of a deceased person.  Under Georgia law, where there is a specific devise of real property found in the Will, a Deed of Assent merely acknowledges the passage of title to the party named in the Will.
All Deeds in this category are essentially a type of Quitclaim Deed since they merely convey property that is in an estate, without general warranties of title.
+ Trustee's Deed
When property is conveyed out of a Trust, generally, the type of instrument used is called a Trustee's Deed.  Under Georgia law, trusts are not recognized as legal entities.  Therefore, conveyances into and out of trusts must be in the name of a trustee.  Typically, the name of the trustee is recited with the name of the beneficiary.
Similar to deeds from estates, the Trustee's Deed can be considered a form of Quitclaim Deed since it does not generally contain the general warranties of title.

NOTE:  The accepted format for holding or vesting title in a trust in the State of Georgia is:  the name of the individual or corporate trustee followed by the words "as Trustee of the" followed by the formal name of the trust.  Improper titling can result in a void deed, or "Deed Void for Lack of Specific Grantee."


Other Deeds
Clicking on any deed type below will open a description for that deed.
+ Security Deed / Deed to Secure Debt
This type of instrument is discussed in detail in the mortgage section below.
+ Spousal Deed
A spousal deed can be any type of deed that is used to add a spouse to title. Consider using a Warranty Deed instead of a Quitclaim Deed, since deed changes may affect coverage under existing title policies.
+ Deed of Gift
See Quitclaim Deed above.
+ Transfer-On-Death Deed
In 2024 the Georgia Legislature passed a law providing for an entirely new form of estate deed. The instrument allows the property to pass to another upon the death of the owner. However, unlike joint tenancy, Transfer-On-Death deed does not pass title to the beneficiary during the life of the owner. In addition, the owner can change the beneficiary (without consent of the beneficiary) during the lifetime of the owner.
Read more about Georgia Tenancy here.


The Due on Sale Clause
Careful when adding parties to your deed. Adding anyone other than a legal spouse, may trigger the due on sale clause in the mortgage and create a default situation.

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Questions? Speak with a Real Estate Lawyer
CHRIS PAHL
Attorney at Law
Georgia Title & Escrow Co LLC
945 E Paces Ferry Rd
Resurgens Plaza
Atlanta, GA 30326
678.448.4148 Tel




Georgia Mortgages
Georgia Mortgages Explained

Americans use the term "Mortgage" in everyday vernacular to refer to their monthly house note payment. Technically, the legal term varies from State to State, but a tighter definition of mortgage may be better stated as "the interest of a mortgage creditor to real estate involving a home loan."  Some States use a deed of trust as the mortgage instrument, some states use a deed to secure debt while others use an instrument actually called a "mortgage."  
In the State of Georgia, the instrument used to secure a debt on property is called a "Deed to Secure Debt" or "Security Deed."   Under Georgia law, the lender is deeded the property, but in a lesser form of a deed that becomes activated if the borrower defaults in some way.  In the words of Georgia courts, "a security deed, although conveying the legal title, does so for the purpose of security only."  By comparison, in some states a lender has only a potential claim or lien on the property.  In practicality, it means that foreclosures in Georgia, like most other States, are by non-judicial process, whereas in mortgage lien States, the foreclosure process tends be through the court system.

Georgia "Waiver of Borrower Rights"
One component of the mortgage document in Georgia is called the "Waiver of Borrower Rights."  This waiver essentially means that Georgia does not require a court hearing before a lender may foreclose on property.  However, these waivers do not prevent a borrower from requiring a lender to go to court. Instead, the lender is not required to go through a lengthy court process to recover the secured property.
+ GA. Code 44-14-60 – Absolute conveyances
GA. Code 44-14-60 Absolute conveyances (Georgia Code (2013 Edition))

Whenever any person in this state conveys any real property by deed to secure any debt to any person loaning or advancing the grantor any money or to secure any other debt and takes a bond for title back to the grantor upon the payment of the debt or debts or in like manner conveys any personal property by bill of sale and takes an obligation binding the person to whom the property is conveyed to reconvey the property upon the payment of the debt or debts, the conveyance of real or personal property shall pass the title of the property to the grantee until the debt or debts which the conveyance was made to secure shall be fully paid. Such conveyance shall be held by the courts to be an absolute conveyance, with the right reserved by the grantor to have the property reconveyed to him upon the payment of the debt or debts intended to be secured agreeably to the terms of the contract, and shall not be held to be a mortgage. No bond for title or to reconvey shall be necessary where the deed shows upon its face that it is given to secure a debt.
"A security deed, although conveying the legal title, does so for the purpsoe of security only . . ."  Northwest Carpets, Inc. v. First Nat. Bank of Chatsworth, 280 Ga. 535, 530 S.E.2d 407 (2006).


Questions? Speak with a Real Estate Lawyer
CHRIS PAHL
Attorney at Law
Georgia Title & Escrow Co LLC
945 E Paces Ferry Rd
Resurgens Plaza
Atlanta, GA 30326
678.448.4148 Tel

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