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New recording rules?
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5/27/2016 at 5:06:03 PM GMT
Posts: 16
New recording rules?
I was in my superior court clerk's office yesterday and the girls were telling me that we would have new recording requirements by January 1st that will change again how we record plats.  Does anyone know anything about this?


5/27/2016 at 7:30:34 PM GMT
Posts: 5
See my post below. It's House Bill 1004, and it really needs to be looked at. Make sure you get the "As Passed" version of the bill.


5/27/2016 at 8:45:26 PM GMT
Posts: 12
Here is a link to the bill.

http://www.legis.ga.gov/legislation/en-us/display/20152016/hb/1004

Mark Lincoln


5/31/2016 at 6:41:05 PM GMT
Posts: 7
Yes this bill got passed and put on the governors desk where it sat for a few weeks before getting signed into law before I knew about it as well. It has some very serious challenges and issues. Discussion is getting started between the clerks, the board, and the AG's office to see how and if we can address everything. It may take corrective legislation to make it workable, but that is going to leave a big gap between January 1 and the effective date of any "corrective" legislation next year, so keep your ears open.


6/3/2016 at 2:06:11 PM GMT
Posts: 2
In Response to HB1004

Concerning the recent legislation pertaining to House Bill 1004’s having passed and signed into law, many have concerns in regards to the effects this law has on them. These misgivings are not only from a survey’s point of view but also from a property owner’s point of view. Having reviewed and participated in the legislative process on several bills in the past, this House Bill and its verbiage ranks among the worst I have ever seen. It gives me the impression that the scriber had no understanding of his subject matter. 

There are many issues with the legislation which are conspicuously bad, of them the most egregious to me is the Surveyor’s Certificate which starts at line 63 and runs thru line 79 which is in complete contempt for the Attorney General’s opinion U2005-5 that the Clerks of Court sought and got clarification on in 2005. 

First of all, no one else should be codify something that can be more easily addressed through the surveyor’s technical standards, the 180 Rules for Surveying, as set out by the Board for Professional Engineers and Land Surveyors. This is addressed through the Board for Engineers and Land Surveyors requirements of O.C.G.A. §15-6-67(b) and (d), of the State Code. Rather than solving anything, This House Bill has only served to create a much bigger problem for the Clerks of the Superior Court, The Local Governing Authorities, The Land Surveyor, and the public at large. 

Secondly... Making a requirement that the Surveyor certify that all applicable laws, codes and ordinances have been meet constitutes a legal opinion, that of which surveyors are not qualified to give. As surveyors and professional, we cannot be expected to be familiar with all the ordinances that might govern a project. Additionally, many times projects fall under several governing authorities, of which often conflict with each other. 

In 2005 the Attorney General was asked to address a serious issue with local governing authorities trying to subvert the public and their right to have their plats recorded. The ruling was clear that the intent of the 1994-1996 General Assembly was to prevent local governing authorities from such tactics. He went on to lay out a clear and precise guideline to the Surveying Profession and the Clerks of the Superior Court on how to handle this matter.  If the plat meets the guidelines then the plat was to be recorded without the local governing authorities adding additional restrictions to have the plat recorded. 

Once again a small group has attempted to subvert the public’s right to have their plats put on record without undue restrictions placed on them by the local governing authority. Land ownership and the people’s right to own land comes from the State. Where the local governing authority has the right to planning and zoning, they do not have the right to place an undue burden on the public and their rights to land ownership. 

We have come across several   “lots of recorded” that were approved and recorded at the time of their creation,  but due to ever increasing regulations and some local governing authorities need for power and creative taxes, these lots cannot be re-recorded today under the new law as passed. The public has the right to place their plats on record, whether or not it meets the current flavor of the day as mandated by some local governing authority. 

Just in case some of you may not be familiar with the components of the Attorney General’s opinion U2005-5 the Clerks of Court sought and got clarification for this in 2005, here is the heart of it, if any one wishes a copy of the exact verbiage, I have it. 

The clerks of superior court asked for guidance regarding the duties and responsibilities of the clerk of court in recording plats of survey in the property records in light of local planning ordinances and the plat recording requirements of O.C.G.A. § 15-6-67. As most of you are aware, this section of the Code underwent multiple changes in the General Assembly in the 1990s and into the 2000s, largely because of the situations involving diverse and often conflicting local planning commission requirements that local governments were attempting to enforce through the clerks of the superior courts. 

Previous versions of the plat recording statute permitted local governments to supplement the law with more restrictive requirements. The intent of the changes by the General Assembly was to prevent local governments from adding such requirements for recording because such practices had resulted in widely varying standards from county to county. 

The revisions to O.C.G.A. § 15-6-67(c) require the clerk of the superior court to file and record any plat meeting the requirements of the statute, whether or not it meets any other requirements, which may have been imposed by a local government... 

If the plat meets the requirements of subsections (b) and (d) of this Code section, it shall be the duty of the clerk of the superior court to file and record such map or plat or blueprint, tracing, photo static copy, or other copy of a map or plat. O.C.G.A. § 15-6-67(c) (emphasis supplied). 

The effect of the change was to remove from the clerk’s plat recording responsibility any locally required ordinance enforcement role. Therefore, in this case, state law fully preempts local ordinances in the arena of plat recording. This serves the public purpose of promoting uniformity of real property plat records statewide. For example, subsection (b) outlines the minimum requirements for plat size and legibility, the minimum features to be depicted, and adds certain required certifications as to accuracy.

Of significance was the change, which permits reproductions of plats, whether blue lines or photocopies, to be recorded so long as the registered surveyor (or county surveyor) who prepared the plat signs the copy in black ink across the surveyor’s seal. O.C.G.A. § 15-6-67(b) (2) (E). These requirements of subsection (b) apply to all plats or maps submitted for recording, further promoting the free flow of commerce within the State. 

O.G.C.A. 15-6-67(d) is at the root of the current controversy. If the map or plat is a “plat of subdivision,” then it must be approved by the local planning commission or appropriate local government official. If the “plat of subdivision” does not have such approval, the clerk may not file or record the plat. However, the last two sentences of the subsection provide an absolute exception to the requirement for planning commission approval... 

Notwithstanding any other provision of this subsection to the contrary, no approval shall be required if no new streets or roads are created or no new utility improvements are required or no new sanitary sewer or approval of a septic tank is required. Any plat of survey containing thereon a certification from the licensed surveyor that the provisions relative to this subsection do not require approval shall entitle said plat to record. O.C.G.A. 15-6-67(d) (emphasis supplied). 

Therefore, if the “plat of subdivision” does not create new streets or roads, or no utility improvements are required, or no new sanitary sewer lines or septic tanks are required, and the surveyor so certifies on the plat, then no planning commission approval is required as a prerequisite for the filing and recording of the plat. 

At this point, it is important to note that none of the provisions of subsection (d) applies unless the plat is a “plat of subdivision.” The Code, however, does not specifically define what is meant by a “plat of subdivision.” 

George S. Zier Senior Assistant Attorney General continues... It is my understanding that some local jurisdictions have insisted that every plat with more than one tract on it be considered a “plat of subdivision” and therefore be required to have either a surveyor’s certification or planning commission approval. 

However, if the map or plat is not a “plat of subdivision,” then there is no statutory requirement for either an approval by a planning commission or a surveyor’s exemption certificate. Keeping in mind that these types of local interpretations were the specific “evil” which the General Assembly was seeking to remedy when the 1994 and 1996 amendments were enacted (see O.C.G.A. § 1-3-1(a)), the entire issue turns on the definition of “plat of subdivision” as contemplated by O.C.G.A. § 15-6-67(d). 

We have reviewed a number of references to subdivisions in county ordinances, both in Georgia cases and legal treatises and in other jurisdictions across the nation. Suffice it to say that no single definition emerges. However, there are four key characteristics of a plat of subdivision which extend back to the original surveys when Georgia was a Crown Colony. Accordingly, we can say with authority that plats of subdivisions have all of the following characteristics... 

1.      The subdivision consists of at least one larger tract of land being divided into two or more smaller tracts; 

2.      The subdivision consists of unimproved real property which is planned or intended to become residential property or lots for other purposes (such as an industrial park); 

3.      The subdivision creates or dedicates public areas for new streets, alleys, or parks, and; 

4.      The subdivision evidences a comprehensive scheme for the development of the property. 

Unless the proposed plat has all four of the above characteristics, it is not a plat of subdivision as delineated by subsection (d). Further, it is clear that certain types of plats are also not plats of Subdivision... 

1.      A plat of a single lot in a subdivision; 

2.      A plat which divides a tract into one or more tracts, all fronting on an existing public road with access to utilities; 

3.      A plat aggregating several smaller tracts into one larger tract (generally referred to as a “recombination plat”); and 

4.      Any plat, regardless of the creation or deletions of roads or parcels or utility lines, when the title is being vested in the State of Georgia, the Department of Transportation, the Board of Regents, or the various state authorities because local ordinances of a city, county or political subdivision are not enforceable against the State. 

See O.C.G.A. § 1-3-8; O.C.G.A. § 1-3-3(8). See also City of Atlanta v. State, 181 Ga. 346 (1935); Neil-Millard Co. v. Trustees of Chatham Acad., 121 Ga. 208 (1904); City of Marietta v CSX Transp. Inc., 272 Ga. 612, 614 (2000); and Mayor of Atlanta v. Central RR and Banking Co., 53 Ga. 120, 124 (1874); Ops. Att’y Gen. 71 113, 73 164, and U76 59. 

The application of the recording statute does not affect in any way the county’s ability to regulate the proper and lawful creation of a subdivision. All of the properly adopted ordinances and regulations of a county remain fully enforceable against the developer or owner seeking to create the subdivision. 

Such ordinances, however, may not alter the clerk’s mandatory duties concerning recording, as recording is not and never has been an indicia of legal compliance with local laws or regulations governing subdivisions. Recording provides only public notice of the real estate transaction.

The General Assembly has clearly restricted recording to that purpose, and has preempted the ability of any local jurisdiction to add additional requirements for recording beyond those specifically prescribed in the statute. 

Accordingly, the clerk should look for the four characteristics of a plat of subdivision set out above. If any one of the four does not exist, or if the plat falls within one of the exceptions listed above, then the plat is not a “plat of subdivision” and the clerk must record the plat if it meets the basic requirements set forth in O.C.G.A. § 15-6-67(b). 

Only if all four of the characteristics exist and none of the exceptions applies is the plat a “plat of subdivision,” thus permitting the clerk to require that either the planning commission approval or the exemption certification of the surveyor appears on the plat. 

Local government subdivision ordinances and regulations to the contrary are not enforceable through the recording duties of the clerk, as those duties are specifically mandated by general law which preempts the ability of a local jurisdiction to add to the real property recording requirements. 

The Senior Assistant Attorney General continues... Therefore, it is my unofficial opinion that the clerk of superior court is mandated by law to file and record in the real property records of the superior court any plat meeting the requirements of O.C.G.A. § 15-6-67(b) and (d), whether or not such plat meets any other requirements which may have been imposed by a local government. 

 

Reference: 

1) Duties and Responsibilities of the Clerk in Recording Plats of Survey in the Real Property Records of the Clerk of the Superior Court., File No. 7700-MA-Jekyll Mitigation Property (10020146), GEORGE S. ZIER Senior Assistant Attorney General 

2) Opinion U2005-5



Last edited Saturday, June 4, 2016
6/9/2016 at 6:03:48 PM GMT
Posts: 16
Thank you very much for the response. We will keep on the alert for any new information and will appreciate any guidance regarding these new changes.


6/20/2016 at 7:11:55 PM GMT
Posts: 16
How about a law stating that if a deed or plat is illegible the Clerk of Court has 24 hours to provide the original for a surveyor or risk a civil fine?


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