InfoBase – Chapter 15

Real Estate Commission

InfoBase - Chapter 15

Chapter 15

Real Property and Ownership Rights



Absolute ownership of real property is ownership or title unqualified by any restrictions other than those imposed by government entities.  Absolute ownership includes the rights:

(a) to sell;
(b) to lease;
(c) to devise by will;
(d) to mortgage;
(e) to encumber;
(f) to build and destroy within the bounds of the law; and
(g) to dedicate or give away.


Absolute ownership of realty in Georgia can be limited in a variety of ways.  Restrictions can be voluntary or involuntary and public or private.  They include:

(a) property (ad valorem) taxes;
(b) liens;
(c) restrictions on use, such as zoning laws;
(d) governmental ability to take property (eminent domain); and
(e) rights held by others, such as easements, riparian (water) rights, covenants, and rights of tenants or lessees.


Any person, natural or artificial (such as a corporation or limited partnership) can own land in the State of Georgia, subject to limits imposed by the U.S. Constitution, the Georgia Constitution, or legislative acts.  The following is a partial list of entities that may hold title to real property in Georgia:

(a) the United States;
(b) the State of Georgia;
(c) political subdivisions of the State of Georgia (cities, counties, and agencies such as the Georgia Ports Authority);
(d) individuals, both citizens of Georgia and citizens of other states;
(e) aliens whose governments are at peace with the United States;
(f) corporations, including Georgia corporations, corporations of other states, and corporations of foreign countries;
(g) trusts, limited partnerships, and limited liability companies (LLCs);
(h) unincorporated religious societies and other associations; and
(i) infants and mental incompetents (although their ownership must be through guardianships and judicial wardships).



The term “estate” refers to the ownership interest one has in land.  An estate is an interest that is possessory or may become possessory.  Interests in land such as mortgage liens and easements are not possessory and, therefore, not estates.  Moreover, ownership interests are measured by duration.   Estates are either freehold (for an uncertain length of time) such as a fee simple or life estate, or less than freehold (for a certain or definable length of time) such as an estate for years or “leasehold estate.”


An absolute or “fee simple” estate entitles the owner to the entire property with unconditional power of disposition (O.C.G.A.  § 44‑6‑20).  If the owner of a fee simple estate dies without a will, the property will pass to the owner’s heirs or legal representatives.   Freedom to dispose of the land in any way during the life of the owner and to decide who will inherit the land on the owner’s death are the primary characteristics of an estate held in fee simple.   Most property transfers involve the transfer of a fee simple estate.


An estate on condition is an estate limited by some condition requiring performance before ownership of an estate will “vest” (endow) an individual with the absolute right of ownership in the property.  Conditions may be either precedent or subsequent.   Conditions precedent require performance before the estate will vest, and conditions subsequent may cause the forfeiture of a vested estate.   For example, Mr. Adair grants Miss Brown an estate in the family farm conditioned upon her finishing college.  The estate is subject to a condition precedent and will not vest until Miss Brown finishes college.  If Miss Brown completes college, the family farm is hers.  However, if Mr. Adair grants an estate in the family farm to Miss Brown, conditioned upon her finishing college within a reasonable time, the estate vests subject to a condition subsequent.  If Miss Brown does not finish college, she loses the family farm.  If there is any question whether the condition established is subsequent or precedent, Georgia courts will favor the finding of a condition subsequent.  Furthermore, if the grantee fails to meet the terms of the condition subsequent, the Georgia courts will seek to cure the situation through the payment of monetary damages by the grantee to the estate or other heirs (O.C.G.A.  § 44‑6‑41).  The judicial preference for the theory of favoring conditions subsequent has evolved in Georgia because courts favor the establishment of ownership of land and are reluctant to disrupt that ownership when remedies other than the loss of that land are available.


The term “life estate” refers to an estate which may extend during the life of a person but which must terminate upon his or her death (O.C.G.A. § 44‑6‑80).  The duration of a life estate may be either for the life of the owner or for the life of some other person or persons (O.C.G.A.  § 44‑6‑82).  The holder of a life estate has the full use and enjoyment of the property if the holder exercises the ordinary care of a prudent person for its preservation and does nothing which would permanently injure the remainder interest (O.C.G.A.  § 44‑6‑83).  Toward that end, the holder of a life estate must make necessary repairs to preserve the property and pay taxes on the property.


The word “remainder” describes the form of estate granted to or owned by someone else.  It indicates that the owner of the remainder interest in the property will enjoy the ownership only after another estate ends or at some time specified in the future.  The owner of an estate in remainder has all the rights and benefits of an owner of a fee estate except that those rights and benefits will not become the remainderman’s to use and enjoy until some future time.  For example, Mr. Adams wills the land that he owns to Mrs. Adams for her lifetime and specifies that after Mrs. Adams dies, the land will pass to their children.  Upon the death of Mr. Adams, Mrs. Adams receives a life estate, and the children receive an estate in remainder (O.C.G.A. § 44‑6‑60).

A remainder interest is either vested or contingent.  If it is vested, the rights of ownership become the remainderman’s subject only to the termination of the other estate.  A remainder interest is contingent if it is granted either to an uncertain person or if the vesting of the estate depends upon the happening of an uncertain event.  For example, Mrs. Green leaves her property to Mr. Green for life with a remainder to all her children surviving at the time of Mr. Green’s death.  Mrs. Green’s children have a contingent remainder, for they must outlive Mr. Green to receive a share of the property.  However, if Mrs. Green leaves her property to Mr. Green for life with a remainder to her children, then the remainder vests in the children.  It is not contingent upon their ability to survive Mr. Green.

An individual who owns an estate in remainder can sell or assign the estate just as the holder of a fee simple or life estate can sell or assign that interest.  The buyer of an estate in remainder receives the same interest held by the seller and must wait until the other estate ends before enjoying the property.


When an owner conveys land to another person for a fixed or determinate period of time, the interest conveyed is an estate for years, also known as a leasehold estate.  An estate for years may be for any number of years, but a lease of less than five years will not be considered an interest in land, unless the document that creates it provides otherwise.  In a true estate for years, the owner conveys all rights of possession and has no obligation to repair the property.  Thus, an estate for years differs from a rental contract such as a standard apartment lease.  In an apartment lease, the landlord contractually gives the right of possession to another without conveying an interest in land. In this type of lease, the interest conveyed is a “usufruct.”  By contrast, when an owner conveys an estate for years, the owner retains only a reversionary interest, that is, the expectation of becoming the full owner again when the estate for years expires.

There are some important consequences to the distinction between an estate for years and a usufruct. One of these distinctions is property taxation.  An estate for years is taxable and a usufruct is not.  For example, the City of Atlanta leased property at Hartsfield Airport to Eastern Airlines on a 30-year lease.  When the city and county attempted to tax the airline, Eastern contested the taxation.  Eastern won the case, since the lease, although long enough to qualify as an estate for years, stated that no estate passed.  The lease had other features similar to a short-term usufruct, and so the court held that Eastern owed no property taxes on the lease.



A tenancy in common exists when two or more people own the right to the simultaneous possession of a property under certain conditions (O.C.G.A. § 44‑6‑120).  Here, the term “tenancy” refers to an ownership interest and not a landlord/tenant relationship.


(a) Tenants in common may own equal or unequal shares in the property, but all tenants have equal rights to the possession of the property.  For example, one tenant in common may own an undivided 40 percent interest and the other tenant in common may own an undivided 60 percent interest.  Neither one may exclude the other from possession of the property.
(b) As long as a tenant does not infringe upon the co‑tenants’ share of the property and does not do anything to diminish the essential value of the property as a whole, the tenant is not liable for rent to the co‑tenants.
(c) Each co-tenant is free to transfer his or her share by deed, encumber his or her interest with a security deed, and will his or her interest in the property to whomever they please.  However, tenants in common may voluntarily restrict their rights of transfer and possession by entering into an agreement.  A common situation would be where two investors own property as tenants in common, but each wants the right to purchase the other’s interest in case the other wants to sell.


(a) A tenant in common is liable to the co‑tenants if he or she receives more than his or her share of any rent or profit from the joint property.
(b) A tenant in common may not waste or destroy the joint property.
(c) A tenant in common may not deprive other co‑tenants of the use of their proportion of the joint property.
(d) A co‑tenant may not appropriate the joint property to his or her exclusive use or use the property in a way that would necessarily exclude other co‑tenants.
(e) A tenancy in common is subject to partition. Partition is a court action to divide property held in common.   Superior Courts have jurisdiction to decide upon a division of the property into separate estates among the co‑tenants if the co‑tenants cannot agree among themselves.   Partition is both a right and a liability.  It is a right if an owner seeks the division of the property.   It is a liability to an owner who does not want the property divided or sold.


Joint tenancy in Georgia is another form of co‑ownership of property.  The rights and privileges of a joint tenant are essentially the same as those of a tenant in common, except that the interest of a joint tenant is subject to a “right of survivorship.”  Upon the death of a joint tenant, the deceased tenant’s interest automatically passes to the other joint tenant(s).  Since joint tenants own undivided interests in the whole property rather than divisible shares as with tenants in common, it is impossible for a joint tenant to sell or assign an undivided interest to another without at least partially terminating the joint tenancy.   For example, if a joint tenancy consists of joint tenants Able and Baker, and Baker sells her interest in the joint tenancy to Carr, that sale ends the joint tenancy.  On the other hand, if a joint tenancy consists of joint tenants Able, Baker, and Carr, and Able sells his interest in the joint tenancy to Dixon, then Baker and Carr remain joint tenants with Dixon as a tenant in common.

Traditionally, Georgia laws have not favored joint tenancies.  Prior to 1977, there was a statute which attempted to abolish joint tenancies.  Even now, the Georgia statute requires the words “joint tenants” when creating a joint tenancy.  If these words are not used, the arrangement is a tenancy in common.  Each joint tenant must take title at the same time, and each joint tenant must have an equal interest in the property.  All joint tenants must be natural persons, not artificial persons such as corporations or limited liability companies.



Condominium ownership includes separate “units” and “common elements.” An individual acquires separate ownership of a unit of the condominium, while owning simultaneously an undivided interest with the other unit owners in the common elements of the condominium.  The physical form a unit can take may vary from a detached building to a portion of one floor of a multistory building.  The common elements at some condominiums include roads, parking areas, tennis courts, and swimming pools, while others are limited to sidewalks, common entrances, and hallways, plus frequently the structural elements and exterior façades and roofs of the condominium buildings.


The State of Georgia created a special set of rules governing condominiums called the Georgia Condominium Act, which became law on October 1, 1975 (O.C.G.A. §  44‑3‑70, et seq.).  The Act does not govern any condominium created before this date.  The Georgia Apartments Act controls any condominium prior to October 1, 1975.  However, condominium owners can bring a pre-1975 complex under the jurisdiction of the Condominium Act by rewriting and submitting the condominium documents in accordance with the provisions set forth in the Act.

This Act creates a special right for buyers of condominiums not available to other buyers of other real property interests except timeshare intervals.  That is, under certain circumstances a buyer of a condominium may rescind the contract to purchase within seven days of entering into the contract.  Buyers may rescind any contract that they have signed until at least seven days after the seller has furnished to the buyer copies of the following documents:

(a) a copy of the floor plan of the purchased unit;
(b) a copy of the current declaration of condominium;
(c) a copy of the current articles of incorporation and bylaws of the association;
(d) a copy of any ground lease or other underlying lease of all or any part of the condominium;
(e) a copy of every contract having a term of more than one year, for the management and operation of either the association, the condominium, or the facilities to be used by the unit owners;
(f) the estimated or actual operating budget for the condominium for the current year and a schedule of estimated or actual expenses for the current year containing expenses of the association and expenses of the unit owner;
(g) a copy of any lease of recreational or other facilities that only the unit owner will use;
(h) a copy of any lease of recreational or other facilities that unit owners will use in common with any other person;
(i) a copy of a statement setting forth the extent of and conditions or limitations applicable to the declarant’s commitment to build and submit additional units, additional recreational or other facilities, or additional property; and
(j) if the unit is in a building or community which was converted from apartments to a condominium, then each of the following:
(1) a statement by the declarant, based on a report prepared by an independent, registered architect or engineer, describing the present condition of all structural components and mechanical and electrical systems, excluding fixtures and appliances within the units, material to the use and enjoyment of the condominium;
(2) a statement by the declarant of the expected useful life of each item reported on as provided in subparagraph (1) of this paragraph, or a statement that no representations are made in that regard; and
(3) a list of any outstanding notices of uncured violations of building code or other county or municipal regulations, along with the estimated cost of curing those violations.

The seller must supply these items bound or stapled into a single package and covered by an index sheet listing each item or explaining that it does not exist.  The seller may require the recipient of the documents to make a nonrefundable deposit of not more than $25.00.  The sellers may apply such deposit to the purchase price of the condominium unit in the event of purchase by the recipient.  A dated, written acknowledgment of receipt of all items required by this subsection, executed by the recipient, is prima‑facie evidence (evidence valid on its face) of the date of delivery of said items.


Establishing a condominium in Georgia requires the following:

(a) the filing of a declaration of condominium in the Superior Court of the county or counties in which the condominium is to be located, containing:
(1) the name of the condominium;
(2) the name of the condominium’s county;
(3) the legal description of the property;
(4) all information identifying and establishing the individual units and the common elements;
(5) the allocation to each unit of an undivided interest in the common elements;
(6) the number of votes each unit has in the association, which may be an equal number of votes per unit or based upon a percentage or some other method; and
(7) each unit’s share of liability for the common expenses which are most often billed on a monthly basis, although the homeowners’ association may require special assessments at other times if needed.
(b) the filing of a condominium plat showing the location of all improvements which constitute either units or common elements;
(c) the filing of condominium floor plans showing the location and dimensions of all units, including vertical cross-sections showing the floor-to-ceiling dimensions of the units; and
(d) the incorporation of the condominium association as a business corporation or nonprofit corporation (O.C.G.A. § 44‑3‑100).


A condominium declaration may allocate maintenance and repair liabilities in various ways among the unit owners and association.  If the declaration does not say otherwise, the following rules apply according to the Act:

(a) The responsibility for the repair and maintenance of the units belongs to the individual owners, as each owner holds separate and complete title to a unit.
(b) All responsibility for repair and maintenance of the common elements, other than “limited common elements,” belongs to the condominium association.
(c) All responsibility for the repair and maintenance of “limited common elements” or those common elements identified in the declaration as being for the use of one or more, but less than all of the units (such as a patio or balcony), belongs to the owners of those particular units.
(d) The condominium association is liable for any damages or injuries done to owners, their families, or their guests through the negligence or willful misconduct of an agent or employee of the association through improper maintenance of any of the common elements that come under the association’s control.


In addition to its maintenance and repair responsibilities, the condominium association must do the following:

(a) obtain casualty insurance affording coverage of all structural elements and common elements within the condominium, plus certain fixtures and other portions of the units;
(b) obtain liability insurance covering injury, death, or property damage on the common elements;
(c) keep minutes of the association meetings; and
(d) maintain detailed financial records and other records as required by law.


In Georgia, the condominium association exercises the collective powers and responsibilities of the condominium owners.  It has, among others, the following powers:

(a) to maintain, repair, renovate, restore, and replace the common elements;
(b) to employ, retain, dismiss, and replace agents and employees on behalf of the association;
(c) to make improvements to the common elements;
(d) to grant or withhold approval of any action by the individual unit owners which would change the exterior appearance of any unit or of any other portion of the condominium;
(e) to borrow money; and
(f) to amend the condominium instruments, articles of incorporation, or association by‑laws.



The term “timeshare program” refers to any arrangement under which the use, occupancy, or possession of real property is divided into predetermined and recurring time periods.  The buyers divide the units or time periods according to a fixed or floating time schedule occurring annually over any period of time that is more than one year in duration.  This form of real property use or ownership is primarily for recreational purposes rather than for continuing residential or business use. A timeshare program can take the form of either an estate (in fee simple or leasehold) or a use arrangement.


A timeshare estate in fee simple has the character and elements of any estate in fee simple.   If the timeshare interest is a leasehold and not an estate in fee simple, it is considered to be an estate for years.  Both forms confer property rights upon the buyer.


A timeshare use is a contractual right of exclusive occupancy that does not fall within the definition of a “timeshare estate.” It does not carry full property or ownership rights like a timeshare estate.  This form of timesharing includes club memberships, limited partnerships, and vacation licenses.


In 1983, Georgia adopted The Georgia Time‑Share Act which defines and regulates timeshare programs.  The Act became effective on July 1, 1983 and was amended in 1995 (O.C.G.A. § 44‑3‑160, et seq.).  All timeshare programs located within Georgia, or out‑of‑state programs that are sold within Georgia, must comply with the provisions of this Act.  This Act creates the same special right for buyers of timeshare intervals available to buyers of condominium units, that is, a buyer of a timeshare interval may rescind the contract to purchase within seven days of entering into the contract.


A developer files the documents creating a timeshare program in the Superior Court of the county or counties in which the project is to be located.  These documents must contain:

(a) the name of the timeshare project’s county or counties;
(b) the legal description or other description sufficient to identify the property;
(c) identification of time periods by letter, number, dates, or other description;
(d) identification of the timeshare estates and, if applicable, the method for creating additional timeshare estates;
(e) the formula, fraction, or percentage of the common expenses and any voting rights assigned to each timeshare estate or unit and, when applicable, to each unit in a project that is not subject to the timeshare program;
(f) any restrictions on the use, occupancy, alteration, or alienation of timeshare intervals;
(g) the ownership interest, if any, in personal property contained in the project, and provisions for the care and replacement of this property; and
(h) the reasonable arrangements for management and operation of the program and for the maintenance, repair, and furnishing of the units.


The Georgia Time-Share Act requires that developers of timeshare projects:

(a) make disclosures to buyers through a public offering statement, a written statement containing information essential to prospective buyers such as the details of the management and operation of the program and the buyer’s right to rescind the contract within seven days;
(b) deposit trust funds with an escrow agent;
(c) use only licensed real estate brokers and agents if required by the real estate license law (O.C.G.A. § 43‑40, et seq.);
(d) provide a “seven day cooling off period” in which purchasers may rescind a contract without penalties; and
(e) ensure that all advertising or promotional contests comply with the Fair Business Practices Act as administered by the Office of Consumer Affairs.


Formerly, the Georgia Time‑Share Act provided for the protection of buyers by regulating timeshare programs through the Georgia Real Estate Commission.  A 1995 Act repealed the former Code Section O.C.G.A. § 44-3-198 which gave the Commission regulatory powers over timeshares.  Nevertheless, time share developments continue to have extensive regulation as noted in this chapter.  The amended Time-Share Act treats time-share developments in much the same manner that Georgia law treats condominiums.  As with the Georgia Condominium Act, enforcement of the Time-Share Act is through private civil actions or through criminal prosecutions by the Attorney General or the district attorneys throughout the state.  The amended Act also carries a provision designed to prevent fraudulent activities in the resale of time-share intervals.  That provision prohibits a person from charging an advance fee, other than an advertising fee, when assisting an owner in reselling a time-share interval.  Any advertising fee must be paid to a party other than the person brokering the resale of the time-share interval.


The timeshare documents must create an association of timeshare unit owners to manage and operate the timeshare program and to provide for the maintenance, repair, and furnishing of the units. The association must also:

(a) adopt by‑laws for organizing and operating the association;
(b) provide for the payment of costs and expenses of operating and maintaining the timeshare program and of owning and maintaining the units;
(c) provide for the employment and termination of employment of the managing agent of the association;
(d) prepare an annual budget and other financial information for owners;
(e) adopt standards and rules of conduct for the use and occupancy of units;
(f) collect assessments to defray the expenses of management of the timeshare program and maintenance of the units;
(g) obtain extended coverage for casualty insurance and general liability insurance for injury, death, and property damage arising out of or in connection with the use of units;
(h) detail methods for providing compensating use periods or monetary compensation to an owner if a unit is not available for the period purchased by the owner; and
(i) provide for penalties for failure of an owner to comply with the provisions of the timeshare instruments or rules of the association.


The timeshare instruments for a timeshare use or leasehold program must prescribe reasonable arrangements for management and operation of the timeshare program and for the maintenance, repair, and furnishing of units, including:

(a) formulating standards and procedures for upkeep, repairs, and the interior furnishing of units;
(b) adoption of standards and rules of conduct governing the use and occupancy of units;
(c) payment of the costs and expenses of operating the timeshare program and owning and maintaining the units;
(d) selection of a managing agent;
(e) preparation and distribution to owners of an annual budget and other financial information concerning the timeshare program;
(f) establishing the rights of owners to the use of the property;
(g) organization of a management advisory board of directors;
(h) adopting procedures for imposing and collecting assessments or use fees from timeshare owners as necessary;
(i) obtaining extended coverage casualty insurance and general liability insurance for injury, death, and property damage arising out of or in connection with the use of the units; and
(j) establishing methods for providing compensating use periods or monetary compensation to an owner if a unit is not available for the period purchased by the owner.


Exchange programs allow owners of timeshare intervals to exchange occupancy rights among themselves or with the owners of timeshare intervals in other timeshare projects.  Prospective buyers often view these exchange programs as desirable, making the programs popular. The Act requires that public offerings of timeshare programs offering exchanges include the following information:

(a) the name and address of the exchange company;
(b) whether the exchange company or its officers or directors have any interest in any timeshare project participating in the exchange program, and if so, the name and location of the project and the nature of the interest;
(c) unless the exchange company is also the developer or an affiliate, a statement that the buyer’s contract with the exchange company is separate from the sales agreement;
(d) whether the buyer’s participation in the exchange program depends upon the continued affiliation of the timeshare project with the exchange program;
(e) whether the buyer’s participation in the exchange program is voluntary or mandatory;
(f) a complete description of the exchange procedure;
(g) a complete description of all limitations and priorities associated with the operation of the program such as unit size and the season of use;
(h) whether exchanges are made on a space‑available basis and whether any guarantees of exchange arrangements are made by the exchange program;
(i) whether an owner, in dealing with an exchange company, may lose the use of the owner’s timeshare interval in an exchange without being provided with substitute accommodations by the exchange company;
(j) the fees charged by the exchange company;
(k) the names and addresses of each timeshare program participating in the exchange program; and
(l) a conspicuous statement that the percentage of owners who request use of a timeshare unit in a particular project, and actually receive the right to use that unit, is no indication of the buyer’s probability of being able to use any specific timeshare unit since availability at individual locations may vary.


Developers of timeshare programs in more than one location may arrange for exchanges in occupancy among timeshare owners in the various locations of the program by use of a multi‑location plan which, as with exchange programs, must disclose among other things, the following information:

(a) a complete description of the procedure to qualify for and obtain rights of use in timeshare units in the multi‑location plan;
(b) a complete description of all limitations or priorities employed in the operation of the plan such as unit size or season of use;
(c) whether the developer arranges use on a space‑available basis and whether the developer guarantees fulfillment of specific requests for use;
(d) the name and address of each timeshare project included in the multi‑location plan; and
(e) a conspicuous statement that the percentage of owners who request use of a timeshare unit in a particular project, and actually receive the right to use the unit, does not indicate a buyer’s probability of being able to use any specific timeshare unit since availability at individual locations may vary.