Title to real property, commonly called real estate, evolved from English Common Law. Entire tracts have been written describing in minute detail the various ways people hold and transfer title to real estate. The purpose of this brief article is simply to describe the most common ways title is held and transferred in Georgia today.

Most people are familiar with the term "fee simple." Fee Simple describes an estate in real property in which the titleholder owns all attributes of ownership. Law students are taught that "all attributes of ownership" is like a bundle of sticks. When someone has fee simple title, it means they own the whole bundle of sticks. If one thinks about ownership as a bundle of rights (sticks), you quickly realize that you can give away part of the ownership interest while retaining the rest of the interests. When a person has fee simple title to a piece of real estate, that person owns the whole piece of property along with all of the various rights that go with it. For instance, a person can transfer the right to possess the property to someone else without transferring the legal title. This can create various interests in the property including life estates, leaseholds, usufructs, licenses and one of the author's favorite terms, the profit a prendre. There are many others. This article is chiefly concerned with the modern residential real estate transfer of title in which the entire bundle or sticks is transferred from one person (or persons) to another.

The modern residential real estate transaction typically involves the transfer of the property from the seller to the buyer (also referred to in this article as the "borrower"). The buyer usually borrows money to pay for most of the purchase price. The buyer accepts title in fee simple from the seller and then conveys an interest, or some sticks, to the lender in the form a mortgage or security deed as collateral for the loan. In Georgia, the most common way to secure a purchase money loan for real estate is through the use of a legal instrument called a security deed (or deed to secure debt). The borrower actually transfers legal title in the property to the holder of the security deed (the lender). The buyer retains the right to possess the property and use it so long as he and or she continues to make payments to the lender and to comply with all of the other terms of the note (promise to repay) and the deed to secure debt. Once the loan is repaid, the lender cancels the security deed effectively vesting the borrower with full, unencumbered title.

Many times, people purchase property with another person. Two or more people can hold the fee simple title together as tenants in common or as tenants in common with a right of survivorship (also known as a "joint tenancy with a right of survivorship or JTWROS). Two or more people can also own distinct and separate interests in the same piece real estate, either presently or in the future. For our purposes, we will only address ownership of present interests in real estate. Future interests are beyond the scope of what is commonly involved in the vast majority of real estate transactions.

It is said that tenancy in common means that one of several owners of the property owns by the whole and by the part. This is because even though a person may own a one half interest in the property, they have the right to occupy the entire parcel. This form of ownership is to be distinguished from the situation where a person accepts a partial interest in the property. This arises from words of conveyance such as "a one half interest." This means that the person accepting the conveyance literally gets a "one half interest" in the property. If the conveyance is worded "one half-undivided interest," this creates a tenancy in common. The person in this case acquires ownership of the whole and the part. They have the right to possession of the entire parcel as well as the right to actual ownership of one half of the property (which means that upon the sale of the property, they have the right to one half of the proceeds after paying any expenses of the sale and any liens).

Joint tenancy adds another right to the tenancy in common. When two or more people take title as tenants in common with a right of survivorship, The interest and title of a tenant who dies is passed automatically by operation of law to the surviving owners of the property. There is no need to transfer title through the probate court. This is a great estate-planning tool that is easily and inexpensively accomplished. Most married couple or families with elderly parents hold title this way to minimize probate of the deceased owner's estate.

Most people have to borrow the majority of the purchase price to buy real estate. The lender almost always requires the purchaser/borrower give it a "security interest" in the property being purchased. In Georgia, the security interest is given in a legal document called a Deed to Secure Debt or Security Deed. The security deed makes the property purchased collateral for the loan and gives the lender a conditional title to the property. This is very important because Georgia recognizes non-judicial foreclosure. Non-judicial foreclosure means that if the borrower fails to make payments on time, the lender can foreclose on the property without suing the borrower. This is because the lender already has a conditional title to the property. It is not required that a court determine that conditions exist to justify the lender foreclosing on the property. All that is necessary for foreclosure to occur is (1) default by the borrower; (2) written notice to the borrower that the lender considers the loan in default and demands the principal balance of the loan due; (3) advertisement in the legal newspaper of the county where the property is located once a week for four weeks; and (4) sale to the highest bidder at the courthouse in the county where the property is located to the highest bidder. The security deed contains a power of attorney (called a power of sale) which allows the lender to convey title on the behalf of the borrower after the foreclosure sale. Many closing attorneys refer to this as "no pay, no stay."

Once the loan is paid, the lender releases its interest in the property and the borrower owns fee simple title.