0 XP

Security Deeds and Title Theory

Georgia lends on title, not on a lien

In most states a home loan creates a lien: the borrower keeps title and the lender gets a claim against it. Georgia is a title-theory state, and the instrument that makes it one is the security deed, also called a deed to secure debt. O.C.G.A. 44-14-60 provides that a deed to secure debt "shall pass the title of the property to the grantee until the debt ... shall be fully paid" and "shall not be held to be a mortgage." Title actually moves. That is why a Georgia lender can sell the property itself under a power of sale instead of suing.

Who is grantor and who is grantee

The borrower conveys title as grantor; the lender holds it as grantee until the debt is paid. The foreclosure statutes match this, defining the "debtor" as "the grantor of the mortgage, security deed, or other lien contract" (44-14-162.1).

The trap is reversing them. Candidates who think of the borrower as the "mortgagee" put the lender in the grantor's seat. Do not confuse the security deed with the warranty deed signed at the same closing, where the seller is grantor and the buyer is grantee. And the closing attorney is never a party to the instrument; that lawyer is the settlement agent, not a titleholder.

What the borrower keeps

The borrower is not stripped of the property. He keeps possession and the right to have title reconveyed when the debt is paid. Title is not split in half between borrower and lender; no Georgia statute creates such an interest.

The Georgia mortgage, and why nobody uses it

Georgia still recognizes a true mortgage, but O.C.G.A. 44-14-30 says "a mortgage in this state is only security for a debt and passes no title." Because it is only a lien, it must be foreclosed judicially, through court. That slowness is exactly why Georgia lenders use security deeds. A mortgage is not prohibited on residential property, and it is not exempt from the intangible recording tax, which under 48-6-61 reaches instruments securing long-term notes.

Knowledge check

3 questions on what you just read. Each answer shows the full explanation and its source.

Loading…