deed of assignment security

Deed of Assignment: Everything You Need to Know

A deed of assignment refers to a legal document that records the transfer of ownership of a real estate property from one party to another. 3 min read updated on January 01, 2024

Updated October 8,2020:

A deed of assignment refers to a legal document that records the transfer of ownership of a real estate property from one party to another. It states that a specific piece of property will belong to the assignee and no longer belong to the assignor starting from a specified date. In order to be valid, a deed of assignment must contain certain types of information and meet a number of requirements.

What Is an Assignment?

An assignment is similar to an outright transfer, but it is slightly different. It takes place when one of two parties who have entered into a contract decides to transfer all of his or her rights and obligations to a third party and completely remove himself or herself from the contract.

Also called the assignee, the third party effectively replaces the former contracting party and consequently assumes all of his or her rights and obligations. Unless it is stated in the original contract, both parties to the initial contract are typically required to express approval of an assignment before it can occur. When you sell a piece of property, you are making an assignment of it to the buyer through the paperwork you sign at closing.

What Is a Deed of Assignment?

A deed of assignment refers to a legal document that facilitates the legal transfer of ownership of real estate property. It is an important document that must be securely stored at all times, especially in the case of real estate.

In general, this document can be described as a document that is drafted and signed to promise or guarantee the transfer of ownership of a real estate property on a specified date. In other words, it serves as the evidence of the transfer of ownership of the property, with the stipulation that there is a certain timeframe in which actual ownership will begin.

The deed of assignment is the main document between the seller and buyer that proves ownership in favor of the seller. The party who is transferring his or her rights to the property is known as the “assignor,” while the party who is receiving the rights is called the “assignee.”

A deed of assignment is required in many different situations, the most common of which is the transfer of ownership of a property. For example, a developer of a new house has to sign a deed of assignment with a buyer, stating that the house will belong to him or her on a certain date. Nevertheless, the buyer may want to sell the house to someone else in the future, which will also require the signing of a deed of assignment.

This document is necessary because it serves as a temporary title deed in the event that the actual title deed for the house has not been issued. For every piece of property that will be sold before the issuance of a title deed, a deed of assignment will be required.

Requirements for a Deed of Assignment

In order to be legally enforceable, an absolute sale deed must provide a clear description of the property being transferred, such as its address or other information that distinguishes it from other properties. In addition, it must clearly identify the buyer and seller and state the date when the transfer will become legally effective, the purchase price, and other relevant information.

In today's real estate transactions, contracting parties usually use an ancillary real estate sale contract in an attempt to cram all the required information into a deed. Nonetheless, the information found in the contract must be referenced by the deed.

Information to Include in a Deed of Assignment

• Names of parties to the agreement
• Addresses of the parties and how they are binding on the parties' successors, friends, and other people who represent them in any capacity
• History of the property being transferred, from the time it was first acquired to the time it is about to be sold
• Agreed price of the property
• Size and description of the property
• Promises or covenants the parties will undertake to execute the deed
• Signatures of the parties
• Section for the Governors Consent or Commissioner of Oaths to sign and verify the agreement

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2020 Georgia Code Title 44 - Property Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens Article 3 - Conveyances to Secure Debt and Bills of Sale Part 1 - In General § 44-14-60. Deed to Secure Debt as Absolute Deed; Necessity of Bond of Title or to Reconvey

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.

(Ga. L. 1871-72, p. 44, § 1; Ga. L. 1872, p. 47, § 1; Code 1873, § 1969; Code 1882, § 1969; Ga. L. 1884-85, p. 57, § 1; Civil Code 1895, § 2771; Civil Code 1910, § 3306; Ga. L. 1924, p. 56, § 1; Code 1933, § 67-1301.)

- For article comparing rights of grantees holding deeds to secure debts against a bankrupt debtor to those rights of the mortgagee and lienor, see 10 Ga. B.J. 5 (1947). For comment on Chase v. Endsley, 165 Ga. 292, 140 S.E. 876 (1927), see 1 Ga. L. Rev. No. 3 p. 49 (1927). For comment on Hertz Driv-Ur-Self Stations, Inc. v. Arnold, 85 Ga. App. 175, 68 S.E.2d 182 (1952), holding that where a lender takes a bill of sale on personal property to secure debt but authorizes borrower to sell property upon certain conditions, a purchaser without knowledge of the conditions takes free of lender's lien, see 14 Ga. B.J. 472 (1952). For comment on Manchester Motors, Inc. v. Farmers & Merchants Bank, 91 Ga. App. 811, 87 S.E.2d 342 (1955), see 18 Ga. B.J. 82 (1955). For comment on Ruff v. Lee, 230 Ga. 426, 197 S.E.2d 376 (1973), see 8 Ga. L. Rev. 264 (1973).

General Consideration

Form and Requisites

Determining Nature of Instrument

Rights of Grantor

Rights of Grantee

Transfer or Assignment

Foreclosure

Constitutionality.

- O.C.G.A. § 44-14-60 is constitutional, and a foreclosure pursuant to it does not violate procedural due process rights. National Community Bldrs., Inc. v. Citizens & S. Nat'l Bank, 232 Ga. 594, 207 S.E.2d 510 (1974).

- The rights of a creditor whose debt is secured by deed from the debtor are fixed by a statute, which, while declaring that such conveyances pass the title to the vendee, evidently intended them to be treated as mere liens, except as between the contracting parties, when the right of third persons only are to be affected. A deed executed under the provisions of O.C.G.A. § 44-14-60 is absolute in the sense that nothing can intervene to prevent the creditor from collecting the debt if the property really belonged to the vendor and is sufficient for that purpose, and in the sense that the vendor is entitled, upon payment of the debt to have title reconveyed to the vendor. But while deeds executed under that section are expressly declared not to be mortgages, it is plain that the legislature, by declaring that they pass absolute title, intended to create a lien of high dignity. Dixon v. Bond, 18 Ga. App. 45, 88 S.E. 825 (1916).

A purchase-money security deed operates as an absolute conveyance of title until the secured indebtedness is fully paid. It generally takes precedence over simultaneous or prior liens against the purchaser, but not prior liens against the property. Connolly v. State, 199 Ga. App. 887, 406 S.E.2d 222 (1991).

- See In re Lookout Mt. Hotel Co., 50 F.2d 421 (N.D. Ga.), rev'd on other grounds sub nom. Bryan v. Speakman, 53 F.2d 463 (5th Cir. 1931), cert. denied, 285 U.S. 539, 52 S. Ct. 312, 76 L. Ed. 932 (1932).

- Because legal title remains in the grantee until satisfaction of the terms of a security deed, all subsequent conveyances of the real property remain subject to the security deed, unless the grantee releases the property by conveyance or contractually subordinates grantee's rights. Rhodes v. Anchor Rode Condominium Homeowner's Ass'n, 270 Ga. 139, 508 S.E.2d 648 (1998).

- Under O.C.G.A. § 44-14-60, the situation is the same as that which would arise if a vendor made a deed to the vendee and then took a mortgage back to secure the indebtedness. Guin v. Hilton & Dodge Lumber Co., 6 Ga. App. 484, 65 S.E. 330 (1909).

- Generally in Georgia the mortgage passes no title to lands; yet landed securities made in a particular way by O.C.G.A. § 44-14-60, which were once held to be equitable mortgages, do pass title now. Thomas v. Morrisett, 76 Ga. 384 (1886).

- O.C.G.A. § 44-14-60 cannot be construed as operating, on the mere payment of the debt, to divest the title which, by a bill of sale as provided by O.C.G.A. § 44-14-60, has passed from the vendor to the vendee, with the right reserved in the vendor to a reconveyance of the title to vendor on the vendee's payment of the debt, but must necessarily be construed as giving to the vendee only the right to retain the title as security for the debt until the debt is paid, and as operating to terminate this right and to cast on the vendee the obligation, after the debt has been paid, to reconvey the property to the vendor. Grady v. T.I. Harris, Inc., 41 Ga. App. 111, 151 S.E. 829 (1930).

- A security deed is automatically released and satisfied by full payment of the secured indebtedness, and title passes by operation of law back to the grantor or to those claiming under the grantor; the title which thus revests upon payment is in no way affected by liens, encumbrances, or rights which would otherwise attach by virtue of title having been vested in the grantee. Commercial Bank v. Stafford, 149 Ga. App. 736, 256 S.E.2d 69 (1979).

- A bill of sale of personalty to secure a debt stands on the same footing as a deed to realty to secure a debt. The status of each is provided for in O.C.G.A. § 44-14-60. Merchants' & Mechanics' Bank v. Beard, 162 Ga. 446, 134 S.E. 107 (1926).

- Grantee of security deed is not entitled to receive entire proceeds of condemnation award for partial, involuntary taking of property conveyed by the security deed, inasmuch as both grantor and grantee have an interest in property conveyed by security deed, and hence a right to compensation upon condemnation. Harwell v. Georgia Power Co., 250 Ga. 435, 298 S.E.2d 498 (1983).

- Open-end or "dragnet" clauses regarding future advances in deeds to secure debt are valid and enforceable. Tedesco v. CDC Fed. Credit Union, 167 Ga. App. 337, 306 S.E.2d 397 (1983).

A deed to secure debt with an "open-end" clause is not cancelled immediately upon payment of the initial debt. Tedesco v. CDC Fed. Credit Union, 167 Ga. App. 337, 306 S.E.2d 397 (1983).

- Where debtor executed several deeds to secure debt on the 1,357 acres of farmland, since the tobacco allotment on the acres would pass to the lender if that acreage was sold to the lender, unless specifically reserved, it necessarily follows that debtor's interest in the allotment was conveyed to the lender by virtue of the deeds to secure debt. In re Flanders, 45 Bankr. 222 (Bankr. M.D. Ga. 1984).

The expression "personal property," as used in O.C.G.A. § 44-14-60 includes choses in action as well as visible, tangible personal property. Garrard v. Milledgeville Banking Co., 168 Ga. 339, 147 S.E. 766 (1929).

- The plain language of O.C.G.A. § 44-14-60, although not clear, seems to establish that a deed to secure debt is not limited solely to securing debts of the grantor but may secure the debt of another. In re Am. Ventures, Inc., 340 F. Supp. 279 (N.D. Ga. 1971), aff'd, 457 F.2d 974 (5th Cir. 1972).

- Where a bill of sale on an ordinary stock of merchandise is executed merely to secure a debt, the bill of sale will attach to after-acquired portions of the stock as in case of mortgages, whether or not the bill of sale makes express reference to such after-acquired property. Merchants' & Mechanics' Bank v. Beard, 162 Ga. 446, 134 S.E. 107 (1926).

- A security deed executed to convey cultivated farm land as security for debt, does not ordinarily comprehend crops matured or unmatured on the land. Penn Mut. Life Ins. Co. v. Larsen, 178 Ga. 255, 173 S.E. 125 (1934).

- While the language in O.C.G.A. § 44-2-1 "every deed conveying lands," standing alone, is broad enough to embrace security deeds, it is not applicable to security deeds. Randall v. Hamilton, 156 Ga. 661, 119 S.E. 595 (1923).

- Payment in full of the debt renders the trust deed functus officio, and ipso facto extinguishes the power of sale. Thurman v. Lee, 181 Ga. 408, 182 S.E. 609 (1935).

- By virtue of O.C.G.A. § 44-14-60 the sale of land under a fi. fa. against the holder of an equity therein, who has conveyed the legal title to another to secure a debt, and while the legal title is thus held, is void. Dickenson v. Williams, 151 Ga. 71, 105 S.E. 841 (1921).

- A mere general agency to conduct the business of farming will not include the power to execute a security deed. Hargrove v. Armour Fertilizer Works, 31 Ga. App. 465, 120 S.E. 800 (1923).

- Where separate deeds executed under O.C.G.A. § 44-14-60 securing separate promissory notes, but by collateral contract the debtor agrees that each deed shall operate as security for the note described in the other, title to all the realty described in both notes passes, as between the debtor and the creditor, to the creditor, and the security is effectual against other creditors who obtain no lien. Johnson v. Gordon, 102 Ga. 350, 30 S.E. 507 (1897).

Wife may be creditor of her husband and may take from him a deed to land to secure the debt under O.C.G.A. § 44-14-60. Turner v. Woodward, 133 Ga. 467, 66 S.E. 160 (1909).

- A stipulation in an insurance policy that change of title or possession will render the policy void, does not cover a change effected by taking a security deed under O.C.G.A. § 44-14-60. Nussbaum v. Northern Ins. Co., 37 F. 524 (S.D. Ga. 1889).

Where a policy of insurance covering a building on the premises is issued, containing a condition that the policy shall be void if the property should be sold, or the title or possession of the property, or any part thereof, transferred or changed, the holder of the policy conveys under O.C.G.A. § 44-14-60 the property insured, the policy is thereby rendered void. Phoenix Ins. Co. v. Asberry, 95 Ga. 792, 22 S.E. 717 (1895).

- After Chapter 7 debtor executed a note to a lender and also executed a security deed to a grantee, as the lender's nominee, to secure the debt, the Chapter 7 trustee could not avoid the deed because the note and deed were executed together and remained linked via language in the documents that contemplated the agency relationship formed by the designation of the grantee as nominee. Drake v. Citizens Bank (In re Corley), 447 Bankr. 375 (Bankr. S.D. Ga. 2011).

- In this state, in matters of taxation, the law looks to the substantial, beneficial ownership of property conveyed under O.C.G.A. § 44-14-60, rather than to the shadowy, technical ownership of the legal title. Central of Ga. Ry. v. Wright, 124 Ga. 630, 53 S.E. 207 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47, 52 L. Ed. 134 (1907).

- Where a grantee who had previously paid tax executions on property purchases the property after exercising the power of sale in a security deed, any claim for money for the tax executions is merged into the grantee's legal title. Branch v. Grubb, 177 Ga. 663, 170 S.E. 799 (1933).

- In the absence of an attack on a properly witnessed and recorded bill of sale placing upon a party the burden of proving its execution, it was not error to admit the bill of sale without proof of its execution. Watkins v. Muse, 78 Ga. App. 17, 50 S.E.2d 90 (1948).

- In an action to remove a cloud from title, the trial court properly granted summary judgment to a bank and cancelled a recorded deed in favor of a holder, as: (1) the holder could no longer claim any legal title to the subject property once the underlying debt thereto was paid; (2) no evidence of valid renewal or extension of the note existed; and (3) the holder lacked standing to challenge any foreclosure on the debt. Northwest Carpets, Inc. v. First Nat'l Bank, 280 Ga. 535, 630 S.E.2d 407 (2006).

- In a breach of contract and bad faith refusal to pay claim under a policy of lender's title insurance, the court reversed the judgment in favor of the insured and held that the issued date for the purpose of measuring any loss by the insured was the date the insured foreclosed on the subject property, not the date the bank closed on the subject loan. Old Republic Nat'l Title Ins. Co. v. RM Kids, LLC, 337 Ga. App. 638, 788 S.E.2d 542 (2016), cert. denied, No. S16C1843, 2017 Ga. LEXIS 117 (Ga. 2017).

Cited in Tufts v. Little, 56 Ga. 139 (1876); Roland v. Coleman & Co., 76 Ga. 652 (1886); Brice v. Lane, 90 Ga. 294, 15 S.E. 823 (1892); Arrowood v. McKee, 119 Ga. 623, 46 S.E. 871 (1904); Hubert v. Merchants' Bank, 137 Ga. 70, 72 S.E. 505 (1911); McCord v. Hill, 10 Ga. App. 254, 73 S.E. 559 (1912); Wood v. Dozier, 142 Ga. 538, 83 S.E. 133 (1914); Beckcom v. Small, 152 Ga. 149, 108 S.E. 542 (1921); Scott v. Paisley, 158 Ga. 876, 124 S.E. 726 (1924); First Nat'l Bank v. State Mut. Life Ins. Co., 163 Ga. 718, 137 S.E. 53, 51 A.L.R. 1524 (1927); Tarver v. Beneficial Loan Soc'y, 39 Ga. App. 646, 148 S.E. 288 (1929); A.J. Evans Mktg. Agency v. Federated Fruit & Vegetable Growers, Inc., 170 Ga. 30, 152 S.E. 49 (1930); Phoenix Mut. Life Ins. Co. v. Bank of Kestler, 170 Ga. 734, 154 S.E. 247 (1930); Investor's Syndicate v. Thompson, 172 Ga. 203, 158 S.E. 20 (1931); Merchants' & Citizens' Bank v. Bogle, 174 Ga. 612, 163 S.E. 489 (1932); A.J. Evans Mktg. Agency, Inc. v. Federated Growers' Credit Corp., 175 Ga. 294, 165 S.E. 114 (1932); Jones v. Kaplan, 48 Ga. App. 118, 172 S.E. 110 (1933); Piedmont Agrl. Credit Corp. v. Northeastern Banking Co., 51 Ga. App. 571, 181 S.E. 84 (1935); First Nat'l Bank v. Southern Cotton Oil Co., 78 F.2d 339 (5th Cir. 1935); Hicks v. Morris, 183 Ga. 116, 187 S.E. 639 (1936); Bull v. Johnson, 63 Ga. App. 750, 12 S.E.2d 96 (1940); A.O. Blackmar Co. v. NCR Co., 64 Ga. App. 739, 14 S.E.2d 153 (1941); Farmers Fertilizer Co. v. Carter, 83 Ga. App. 274, 63 S.E.2d 245 (1951); Carrollton Prod. Credit Ass'n v. Allen, 93 Ga. App. 150, 91 S.E.2d 93 (1955); Charles S. Martin Distrib. Co. v. First State Bank, 114 Ga. App. 693, 152 S.E.2d 599 (1966); Murray v. Johnson, 222 Ga. 788, 152 S.E.2d 739 (1966); Fourth Nat'l Bank v. Grant, 231 Ga. 692, 203 S.E.2d 517 (1974); Porter v. Mid-State Homes, Inc., 133 Ga. App. 706, 213 S.E.2d 10 (1975); Fourth Nat'l Bank v. Grant, 135 Ga. App. 798, 219 S.E.2d 12 (1975); National Bank & Trust Co. v. Grant, 237 Ga. 337, 227 S.E.2d 372 (1976); Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978); Peacock v. Owens, 244 Ga. 203, 259 S.E.2d 458 (1979); In re Wilder, 22 Bankr. 294 (Bankr. M.D. Ga. 1982); Cravey v. L'Eggs Prods., Inc., 100 Bankr. 119 (Bankr. S.D. Ga. 1989); McCarter v. Bankers Trust Co., 247 Ga. App. 129, 543 S.E.2d 755 (2000); Stearns Bank, N.A. v. Mullins, 333 Ga. App. 369, 776 S.E.2d 485 (2015).

Instrument cannot be of two natures.

- The parties cannot by an agreement make an instrument both retaining title and not retaining title; nor can they by such agreement make a summary statutory proceeding applicable by law to one character of instruments applicable by agreement to another. Wynn & Robinson v. Tyner, 139 Ga. 765, 78 S.E. 185 (1913).

- Where a security deed conveys a certain lease from the lessor to the grantor in such deed, which deed fully describes the lease and the leased premises and contains this provision: "including also all the machinery, equipment, stock in trade and all other assets" of the grantor, the description of such personal property is sufficient. Bennett v. Green, 156 Ga. 572, 119 S.E. 620 (1923).

- It is not necessary that a deed to secure debt shall specify the amount of the indebtedness that it is given to secure. Troup Co. v. Speer, 23 Ga. App. 750, 99 S.E. 541, cert. denied, 23 Ga. App. 813 (1919).

- The trial court, having found a debt to have been forgiven upon a decedent's death, did not err in ordering the decedent's administrator to cancel a deed to secure debt. The litigation did not give notice to the public that the deed had been cancelled; under O.C.G.A. §§ 44-14-3(b) and44-14-60, a grantee of a security deed had the duty to cancel the deed of record when the obligation was satisfied. Mize v. Woodall, 291 Ga. App. 349, 662 S.E.2d 178 (2008).

- A deed executed by a borrower under O.C.G.A. § 44-14-60 to secure a debt infected with usury, and purporting not only to convey title to the lender, but also to confer upon the latter a power of sale, is void. Pottle v. Lowe, 99 Ga. 576, 27 S.E. 145, 59 Am. St. R. 246 (1896). See also McLaren v. Clark, 80 Ga. 423, 7 S.E. 230 (1888); Liles v. Bank of Camden County, 151 Ga. 483, 107 S.E. 490 (1921).

Under the Federal Farm Loan Act of 1916, as amended (former 12 U.S.C. §§ 771, 781, now repealed), a Federal Land Bank has authority and "jurisdiction" to lend money to members of national farm loan associations on security of mortgages on farm lands within its district, and it may in the State of Georgia take as security a deed to secure debt instead of a mortgage, and one who has obtained a loan from such a bank, and others holding under that person, will be estopped to deny the bank's authority. Smith v. Federal Land Bank, 56 Ga. App. 526, 193 S.E. 257 (1937).

Mortgage and deed to secure debt distinguished.

- A deed to secure a debt is not the same as a mortgage. Such a deed conveys title; a mortgage is only a lien. Cole v. Cates, 110 Ga. App. 820, 140 S.E.2d 36 (1964).

- If the title becomes divested from the vendee upon the mere payment of the debt, the instrument created is only a mortgage, and is not a bill of sale to secure a debt and an instrument passing title as provided under O.C.G.A. § 44-14-60. Grady v. T.I. Harris, Inc., 41 Ga. App. 111, 151 S.E. 829 (1930).

A bill of sale to secure debt conveys an outright legal title, as distinguished from a mortgage lien, so as to place such legal title beyond the reach of any lien, statutory or otherwise, in the absence of a recording act treating such as an equitable mortgage. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342 (1955).

Security deeds and trust deeds distinguished. See In re Lookout Mt. Hotel Co., 50 F.2d 421 (N.D. Ga.), rev'd on other grounds sub nom. Bryan v. Speakman, 53 F.2d 463 (5th Cir. 1931), cert. denied, 285 U.S. 539, 52 S. Ct. 312, 76 L. Ed. 932 (1932).

- A bill of sale transferring title to a discount company of certain household furniture of the plaintiff as collateral security for a loan is not a mere pledge, but legal title is in the creditor subject to the right of the debtor to a reconveyance upon the debtor's payment of the debt in compliance with the terms of the contract. Jones v. Brown, 108 Ga. App. 776, 134 S.E.2d 440 (1963).

- A deed absolute on its face and accompanied with possession of property by defendant, could not, under the state of the pleadings, be proved by parol to be only a mortgage given for the purpose of securing a debt. Mitchell v. Fullington, 83 Ga. 301, 9 S.E. 1083 (1889).

- The creation of a trust for the purpose of paying a note is the same in effect as the insertion of a defeasance clause in the instrument; and this being true, such instrument is a mortgage, and not a bill of sale. Ward v. Lord, 100 Ga. 407, 28 S.E. 446 (1897).

- An instrument in the usual form of a security deed under O.C.G.A. § 44-14-60, but containing a clause providing that should the grantor "faithfully perform and keep all the covenants and agreements herein set out, this conveyance shall cease, determine, and be void," is a mortgage, and not a deed. Massillon Engine & Thresher Co. v. Burnett, 19 Ga. App. 487, 91 S.E. 786 (1917).

O.C.G.A. § 44-14-60 not exclusive for conveyance of absolute title to a creditor to secure a debt. Roland v. Coleman & Co., 76 Ga. 652 (1886); Ward v. Lord, 100 Ga. 407, 28 S.E. 446 (1897).

- A failure to comply strictly with the provisions of O.C.G.A. § 44-14-60 does not necessarily make a conveyance given to secure a debt a mortgage. Williamson v. Orient Ins. Co., 100 Ga. 791, 28 S.E. 914 (1897).

- If a deed is not made under O.C.G.A. § 44-14-60, but is made for the purpose of securing a debt, it would be what was known before the passage of the Act embodied in O.C.G.A. § 44-14-60, as an equitable mortgage, conveying the title of the land with the equitable right of redemption. Mitchell v. Fullington, 83 Ga. 301, 9 S.E. 1083 (1889).

- Where a written instrument which purports to be a bill of sale passing the title as security for a debt contains a defeasance clause, the instrument is a mortgage, and the title, which under the language of the instrument purports to pass, does not pass to the vendee. Grady v. T.I. Harris, Inc., 41 Ga. App. 111, 151 S.E. 829 (1930); Personal Fin. Co. v. Bailie, 43 Ga. App. 245, 158 S.E. 436 (1931).

- Where an instrument was described as "this mortgage," it was the intention of the parties that the instrument be construed to be a mortgage. Massillon Engine & Thresher Co. v. Burnett, 19 Ga. App. 487, 91 S.E. 786 (1917).

- A bill of sale of personalty to secure the payment of a debt, which recites that "this is a deed conveying title, and a bond to reconvey is this day given," is not a mortgage, but a conveyance under O.C.G.A. § 44-14-60. Watts v. Wight Inv. Co., 25 Ga. App. 291, 103 S.E. 184 (1920).

- An instrument otherwise in the form of a security deed is not a mortgage merely because it recites that it was given to secure an endorser upon a described note. The relationship of the parties does not make it a mortgage, nor is such recital a defeasance clause whereby the instrument should be treated as a mortgage and not as a security deed. Richey v. First Nat'l Bank, 180 Ga. 751, 180 S.E. 740 (1935).

- Where a warranty deed to secure a debt contains no defeasance clause, and no bond to reconvey is executed contemporaneously therewith - the grantee being given the power to sell the land at public outcry upon default in the payment of the debt - it is not necessary that title be again placed in the grantor in order to bring the property to sale. Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84, 169 S.E. 337 (1933).

- A conveyance of real property, which recites that it is given for the purpose of indemnifying the grantee against loss resulting from an outstanding "mortgage" upon other property which the same grantor had conveyed to the same grantee, which contains no habendum clause and which provides that when the mortgage referred to is paid, "then this deed shall be null and void," and which further provides that when this mortgage is paid "this deed shall become null and void and cancelled on the record and surrendered to" the grantor, is not a security deed passing title to the grantee, but is a mortgage only. Camp v. Teal, 44 Ga. App. 829, 163 S.E. 233 (1932).

- Where an instrument was denominated a bill of sale for personalty and was given to secure a debt, as provided in O.C.G.A. § 44-14-60, yet where it contained a stipulation that the title to the personalty was put into the vendee until the debt was paid in full, this stipulation, by its terms, terminated the title to the vendee on the payment of the debt, and, when the debt was paid, the title reverted to the vendor; the instrument, therefore, was a mortgage only, and created only a lien upon the personalty, and passed no title thereto. Hix v. Williams, 42 Ga. App. 143, 155 S.E. 355 (1930).

Because a security deed did not specify a fixed period for repayment or state that the security interest was perpetual under O.C.G.A. § 44-14-80(a), title to the property reverted to the grantor after seven years and the grantee's security interest in the property was lost. Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790, 766 S.E.2d 156 (2014).

- Where the holder of a promissory note, secured by an instrument purporting to be a deed, obtains a judgment thereon, stating in the holder's declaration that the instrument is a deed, the holder will not afterwards be heard to allege that the instrument is a mortgage and not a deed passing title. McCandless v. Yorkshire Guarantee & Sec. Corp., 101 Ga. 180, 28 S.E. 663 (1897).

- Under O.C.G.A. § 44-14-60 a bill of sale of personalty to secure a debt, although it contains a clause to reconvey the property upon the payment of the debt, is not a mortgage, but is an absolute conveyance of the property, and passes title to the same until the debt is fully paid. Hill v. Marshall, 18 Ga. App. 652, 90 S.E. 175 (1916).

Where an instrument recited that, whereas, the subscriber bargained, sold, transferred, and conveyed to C. all the stock of goods in a certain store, etc., that delivery was dispensed with, and that the goods were to remain in the subscriber's possession until default in the payment of the note and interest, during which time the subscriber was to be a bailee for hire, and on default was to deliver the property to C., it was a deed to secure a debt under O.C.G.A. § 44-14-60, and not a chattel mortgage. In re Caldwell, 178 F. 377 (S.D. Ga. 1910).

In general.

- While deeds to secure debt do pass title to the property by which the debt is secured, such a deed does not divest the grantor in such deed of all the grantor's rights and interest in the property. Barnard v. Barnard, 91 Ga. App. 502, 86 S.E.2d 533 (1955).

- The grantor in a deed under O.C.G.A. § 44-14-60 retains the right of possession and the right of redemption by payment of the debt, and consequently an equitable estate in the land which may be assigned or subjected to payment of grantor's debts. Citizens Bank v. Taylor, 155 Ga. 416, 117 S.E. 247 (1923); Uvalda Naval Stores Co. v. Cullen, 165 Ga. 115, 139 S.E. 810 (1927); Citizens & S. Bank v. Realty Sav. & Trust Co., 167 Ga. 170, 144 S.E. 893 (1928); Federal Land Bank v. St. Clair Lumber Co., 58 Ga. App. 532, 199 S.E. 337 (1938); Bell v. Allied Fin. Co., 215 Ga. 631, 112 S.E.2d 609 (1960).

- O.C.G.A. § 44-14-60 contemplates that the grantor might remain in possession of the property. Tift & Co. v. Dunn, 80 Ga. 14, 5 S.E. 256 (1887).

- Where one executes a security deed and remains in possession of the land described in the deed, that person's possession is under the grantee in the security deed and is not adverse to the title, and neither prescription nor the statute of limitations is available as a defense to an action in ejectment founded on the security deed. Thomas v. Stedham, 208 Ga. 603, 68 S.E.2d 560 (1952).

- When one has borrowed a sum of money and conveyed land to the lender as security for the payment of the debt, and received from the grantee a bond conditioned to reconvey on the payment of the debt, the interest pertaining to such land which the grantor thereafter possesses, until the debt is paid, is the right to redeem. Williams & Bessinger v. Foy Mfg. Co., 111 Ga. 856, 36 S.E. 927 (1900).

- The right to redeem is an equitable estate in the land, and may be sold and conveyed, subject to the paramount right of the original grantee to have all of the land appropriated to the payment of grantee's debt. Williams & Bessinger v. Foy Mfg. Co., 111 Ga. 856, 36 S.E. 927 (1900).

- To redeem land, held by absolute legal title as security for a debt under O.C.G.A. § 44-14-60, the debt must be paid or tendered; and, generally, a tender will be effective, though delayed till after the creditor has recovered possession of the premises by action. Broach v. Barfield, 57 Ga. 601 (1876).

- A security deed leaves the grantor no interest in land which can be subjected to levy and sale by a creditor whose judgment was obtained after the deed was executed. Shumate v. McLendon, 120 Ga. 396, 48 S.E. 10 (1904); Bennett Lumber Co. v. Martin, 132 Ga. 491, 64 S.E. 484 (1909); Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84, 169 S.E. 337 (1933); Dean v. Andrews, 236 Ga. 643, 225 S.E.2d 38 (1976).

- A security deed to land conveys the legal title to the vendee, and the rights of the vendee cannot be affected by subsequent acts of conveyance by the vendor to third parties. But the vendor has such an equitable interest in the premises conveyed as that the vendor may create a valid second security deed, or lien, subject to the paramount right of the original grantee to have all the land appropriated to the payment of grantee's debt. Cook v. Georgia Fertilizer & Oil Co., 154 Ga. 41, 113 S.E. 145 (1922).

- Before a borrower who has executed a deed under O.C.G.A. § 44-14-60 can have affirmative equitable relief, such as injunction to prevent exercise of the power of sale by the grantee in such security deed, the borrower must pay or tender to such grantee the principal and lawful interest due. Liles v. Bank of Camden County, 151 Ga. 483, 107 S.E. 490 (1921).

- An absolute deed, though made as a security for a debt, passes title under O.C.G.A. § 44-14-60, and a judgment subsequently rendered against the grantor, has no lien on the land which can be enforced by levy and sale until the title can become reinvested by redemption. Groves v. Williams, 69 Ga. 614 (1882).

- A sale under the powers contained in a deed to secure debt divests the grantor of all title, and right of equity of redemption, to the lands described in the deed. Cummings v. Johnson, 218 Ga. 559, 129 S.E.2d 762 (1963).

- Title by virtue of a deed under O.C.G.A. § 44-14-60 was not divested by the subsequent voluntary bankruptcy of the grantor, and grantor's consequent discharge from all debts. Broach v. Barfield, 57 Ga. 601 (1876); Thomas v. Stedham, 208 Ga. 603, 68 S.E.2d 560 (1952).

- Title under O.C.G.A. § 44-14-60 was not divested by the bankrupt causing the land to be set apart in bankruptcy as the bankrupt's homestead exemption. Broach v. Barfield, 57 Ga. 601 (1876).

- A conveyance to secure a debt, made under O.C.G.A. § 44-14-60, passes title, and defeats all right to homestead in the land covered by such a deed. Isaacs v. Tinley, 58 Ga. 457 (1877). See also, Johnson v. Griffin Banking & Trust Co., 55 Ga. 691 (1876); Christopher v. Williams, 59 Ga. 779 (1877); Kirby v. Reese, 69 Ga. 452 (1882); Morgan v. Community Loan & Inv. Co., 195 Ga. 675, 25 S.E.2d 413 (1943).

- The right to contest the validity of a security deed on the ground that the notes secured by the deed contain usury is personal to the maker of the security deed, the maker's representatives and privies. A stranger in interest will not be heard in an attack on a title claimed to be void for usury. Dickenson v. Williams, 151 Ga. 71, 105 S.E. 841 (1921).

- Where the leasehold of the plaintiff is under one who, by making a security deed to a creditor under O.C.G.A. § 44-14-60, has divested himself of the legal title, and the plaintiff has no more than a mere possession of the land upon which the trespass is alleged to have been committed, plaintiff cannot maintain an action for damages to the realty. Flowers Lumber Co. v. Bush, 18 Ga. App. 269, 89 S.E. 344 (1916).

- The interest which a grantee takes under a deed executed under this law is not absolute in its broadest sense, but is restricted to holding title as security for the debt. For that purpose it places legal title out of the grantor, but on payment of the debt the right of the grantee to hold it ceases. It is a species of security effective from the date of the instrument when duly recorded, and is enforceable against the property by levy and sale under proceedings elsewhere provided for in the Code. Harvard v. Davis, 145 Ga. 580, 89 S.E. 740 (1916); Trust Co. v. Mobley, 40 Ga. App. 468, 150 S.E. 169 (1929).

- One holding a deed to secure debt under O.C.G.A. § 44-14-60 has the option of pursuing the statutory method of suing on the indebtedness, obtaining a judgment, executing a quitclaim deed to the debtor and filing the same for record for purposes of levy, and having the land sold under the judgment or the security deed may be foreclosed as an equitable mortgage. Ryals v. Lindsay, 176 Ga. 7, 167 S.E. 284 (1932).

- The holder of a subsisting security deed has the legal title to the property, and such title may be levied on as the holder's property to satisfy an execution against the holder. Parrott v. Baker, 82 Ga. 364, 9 S.E. 1068 (1889); Richey v. First Nat'l Bank, 180 Ga. 751, 180 S.E. 740 (1935).

A grantee has standing to enforce restrictive covenants against an outsider, and there is no need for the grantee to show actual benefit or injury to enforce this right. Turner Adv. Co. v. Garcia, 252 Ga. 101, 311 S.E.2d 466, cert. denied, 469 U.S. 824, 105 S. Ct. 101, 83 L. Ed. 2d 46 (1984).

- Unlike a mortgagee, who acquires only a lien, the grantee, or holder of a security deed in Georgia acquires the fee simple title to the property, subject to the right of the grantor, who is known as the equity owner, to reacquire the fee simple title upon satisfying the terms of the security deed. Sayers v. Forsyth Bldg. Corp., 417 F.2d 65 (5th Cir. 1969).

- The grantee in a bill of sale, given for the purpose of securing a present, past or future indebtedness, has an interest in the pledged property which will support an action of trover against any one who wrongfully converts the same to the grantee's use, and in a proceeding instituted for that purpose the grantee may elect to take a money verdict, and in such a case where an election to take a money verdict is made, the measure of damages is either the highest proved value of the pledged property between the date of conversion and the trial, or the value of the property at the time of conversion, with interest or hire thereon; but subject, however, to the condition that under neither choice can a recovery be had for more than the amount of the debt for which the property stands as security. Rose City Foods, Inc. v. Bank of Thomas County, 207 Ga. 477, 62 S.E.2d 145 (1950).

- While a bill of sale to secure debt will support an action in trover it is necessary to allege in the petition a default by the maker giving the holder the right of possession, and in the absence of such an allegation, the petition is subject to general demurrer. American Nat'l Bank & Trust Co. v. Davis, 104 Ga. App. 586, 122 S.E.2d 477 (1961).

- A deed to secure a debt passes the legal title under O.C.G.A. § 44-14-60 and will authorize a recovery in ejectment. Dykes v. McVay, 67 Ga. 502 (1881); Todd v. Morgan, 215 Ga. 220, 109 S.E.2d 803 (1959).

- The vendee in a security deed, after the debt matures, can bring ejectment against the vendor upon the title put in the vendee by such deed. Carswell v. Hartridge, 55 Ga. 412 (1875); Biggers v. Bird, 55 Ga. 650 (1876); Dykes v. McVay, 67 Ga. 502 (1881); Bennett v. Green, 156 Ga. 572, 119 S.E. 620 (1923).

- A deed under O.C.G.A. § 44-14-60 passing title to the grantee therein named, for the purpose of securing a debt, can, after the maturity of the debt, be set up as outstanding title to defeat an action of ejectment brought by one claiming under the grantor, if the possession of the defendant is connected with such title. Ashley v. Cook, 109 Ga. 653, 35 S.E. 89 (1900).

- The creditor may institute action thereon and may pray for and obtain a special judgment subjecting the property described in the deed to the payment of the debt. Jewell v. Walker, 109 Ga. 241, 34 S.E. 337 (1899).

- Where creditor has collateral, mortgage, or other form of security upon property of the debtor, failure to accept a lawful tender discharges the lien which was intended to secure payment. Thurman v. Lee, 181 Ga. 408, 182 S.E. 609 (1935).

- In order for a creditor to levy an execution upon property covered by a valid bill of sale made to secure a debt under O.C.G.A. § 44-14-60, the creditor must first redeem the property by paying off in full the security debt, and a levy made without a compliance with such condition precedent is void. Bank of La Grange v. Rutland, 27 Ga. App. 442, 108 S.E. 821 (1921), later appeal, 29 Ga. App. 478, 116 S.E. 49 (1923).

- Where furnace was a chattel attached to the realty of the grantee in the security deed as an "irremovable fixture," and where, after the execution of the security deed, it is detached and carried away by the grantor in said deed, an action will lie for its recovery and the fact that it was subsequently attached to the realty of the grantor in another county and this realty was sold to an innocent purchaser does not deprive the innocent owner of the property merely because some other person may be innocent or ignorant of the plaintiff's ownership. Burpee v. Athens Prod. Credit Ass'n, 65 Ga. App. 102, 15 S.E.2d 526 (1941).

- A deed under O.C.G.A. § 44-14-60 passes the title to the land and the timber growing thereon to the vendee. G. H. Ponder & Co. v. Mutual Benefit Life Ins. Co., 165 Ga. 366, 140 S.E. 761 (1927); Federal Land Bank v. St. Clair Lumber Co., 58 Ga. App. 532, 199 S.E. 337 (1938).

- A duly filed and recorded deed to secure debt is notice of all the rights which the grantee has thereunder. Cummings v. Johnson, 218 Ga. 559, 129 S.E.2d 762 (1963).

- Where a large body of land divided by a county line was conveyed as a whole to secure a debt, with bond for reconveyance, the creditor, after obtaining judgment, could have the entire tract levied on and sold in either county, neither being the county of the residence of the defendant in execution. Cade v. Larned, 99 Ga. 588, 27 S.E. 166 (1896).

- An unrecorded bill of sale to secure debt is uniformly superior to any lien arising by operation of law. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342 (1955).

- Where the owner of property incumbered it with a security deed and a contractor's lien, and thereafter leased a portion of it to a third person for a term of years, the holders of the liens will be compelled to sell such property in such a manner as not capriciously, unnecessarily, and unjustly to interfere with such leasehold interest. Western Union Tel. Co. v. Brown & Randolph Co., 154 Ga. 229, 114 S.E. 36 (1922).

- Where title to real estate is conveyed by a duly recorded deed to secure a debt under O.C.G.A. § 44-14-60, and the grantee takes the deed and advances the money loaned, without notice and before the record of the materialman's lien upon the property, the title thus acquired is superior to such lien. Bennett Lumber Co. v. Martin, 132 Ga. 491, 64 S.E. 484 (1909); Milner v. Wellhouse, 148 Ga. 275, 96 S.E. 566 (1918); Guaranty Inv. & Loan Co. v. Athens Eng'g Co., 152 Ga. 596, 110 S.E. 873 (1922); Rivers v. Williams Bros. Lumber Co., 174 Ga. 262, 162 S.E. 699 (1932).

- A security deed under O.C.G.A. § 44-14-60 is such a conveyance of title as will defeat laborers' liens upon the property embraced therein, if their creation was junior to this instrument, or if such deed was taken bona fide by the grantee and without notice of such liens. Bennett v. Green, 156 Ga. 572, 119 S.E. 620 (1923).

- When property has been conveyed by a grantor to secure a debt, and the grantee in the security deed reduces debt to judgment and files a quitclaim deed for the purpose of levy and sale, and the property is sold by the sheriff under the levy of the execution issued on such judgment, the lessee from the grantor under a lease junior to the security deed can at law be dispossessed by the sheriff for the purpose of placing in possession the purchaser of the property at such sale; and this may be done notwithstanding the fact that the lease is older than the judgment, when it is junior to the security deed. Mattlage v. Mulherin's Sons & Co., 106 Ga. 834, 32 S.E. 940 (1899).

- The title acquired under a deed under O.C.G.A. § 44-14-60 is superior to the right to a year's support, or dower, though such right to a year's support and dower are superior to the lien of a mortgage. When a judgment has been obtained on any indebtedness secured by the deed, before the property can be levied upon and sold, there must be a reconveyance by the grantee to the grantor. Bennett Lumber Co. v. Martin, 132 Ga. 491, 64 S.E. 484 (1909).

- Where the plaintiff in fi. fa. has filed a deed under O.C.G.A. § 44-14-60 for the purpose of having the land levied upon which had been conveyed to plaintiff by plaintiff's debtor as security for the debt, the sheriff, though the fi. fa. issued from a justice's court, may make the levy without making a search for personal property or making an entry upon the fi. fa. that no such property can be found. Bennett v. McConnell, 88 Ga. 177, 14 S.E. 208 (1891).

A fi. fa. issued upon a judgment rendered for a debt secured by a deed made under O.C.G.A. § 44-14-60 cannot be levied upon the realty conveyed as security until after the creditor has executed, filed, and had recorded a deed reconveying the property to the debtor; and a sale by the sheriff to the creditor, the levy having been made after the execution of such deed, but before it was either filed or recorded, is utterly void. National Bank v. Danforth, 80 Ga. 55, 7 S.E. 546 (1887).

- Where a creditor, whose debt was secured by a conveyance of land under O.C.G.A. § 44-14-60, obtained judgment, reconveyed the land to the debtor, and subsequently acquiesced in a sale of the land under an execution in favor of another creditor, and claimed the proceeds of such sale in the sheriff's hands, the lien of the secured creditor attached to such proceeds, and the purchaser at the sheriff's sale acquired an unencumbered title. Marshall v. Hodgkins, 99 Ga. 592, 27 S.E. 748 (1896).

- While it is the better practice, it is not essential, in suits upon notes secured by deed under O.C.G.A. § 44-14-60, to specify or declare a lien on the face of the pleadings or the judgment therein, in order to sell the land under execution by filing a deed reconveying the land, and to subject it to the special contract lien. The proof of the special lien may be made aliunde the face of the judgment or the pleadings on the note sued. Spradlin v. Kramer, 146 Ga. 396, 91 S.E. 409 (1917).

- The court does not err in awarding money to a judgment creditor, upon a levy, where it does not appear that the defendant repaid any of the money borrowed, or that the lender conveyed back the land and filed the deed in the clerk's office. Osborne v. Hill, 91 Ga. 137, 16 S.E. 965 (1893).

- The surety cannot sustain a claim to the property where it is levied on as that of the principal under an execution against the principal in favor of another creditor. Bank of Trion v. Parker, 43 Ga. App. 686, 160 S.E. 128 (1931).

- Trial court erred by granting summary judgment to a judgment lienholder because the lienholder did not establish as a matter of law that the lienholder had any legal or equitable interest in the property at any time after a quitclaim deed was executed; because the record did not establish that the lienholder had any ownership interest in the property upon which the right to seize assets could attach, the trial court erred in finding that the lienholder held a judgment lien against the property. Wells Fargo Bank, N.A. v. Twenty Six Properties, LLC, 325 Ga. App. 662, 754 S.E.2d 630 (2014).

Rights of transferee.

- A transferee of the grantee named in the security deed occupies the position of such grantee as against the grantor and those claiming under the grantor. Gilliard v. Johnston & Miller, 161 Ga. 17, 129 S.E. 434 (1925).

Assignee of a security deed has legal title to the property, subject to the right of the grantor to have the realty reconveyed to the grantor upon payment of the debt. Regante v. Reliable-Triple Cee of N.J., Inc., 251 Ga. 629, 308 S.E.2d 372 (1983); Leathers v. McClain, 255 Ga. 378, 338 S.E.2d 666 (1986).

- While an assignment of a promissory note, or other evidence of indebtedness, secured by a deed to land executed under the provisions of O.C.G.A. § 44-14-60, does not pass to the assignee a legal title to the land itself, such assignee has an equitable interest in the security effectuated by the deed. Van Pelt v. Hurt, 97 Ga. 660, 25 S.E. 489 (1896).

- Where the transferee of the debt secured by a deed reduces the same to judgment, all that is essential to the enforcement of a special lien in the transferee's favor is the rendition of a general judgment thereon, the conveyance by the vendee in the security deed to the defendant of the lands embraced therein, and proof aliunde that such judgment was rendered upon the secured debt. Lively v. Oberdorfer, 216 Ga. 673, 119 S.E.2d 27 (1961).

- Because a debtor filed a second bankruptcy petition for the express purpose of delaying and frustrating the legitimate efforts of a secured creditor to enforce its right of foreclosure, the debtor was found to have not acted in good faith under 11 U.S.C. § 362(g); thus, cause existed to annul or lift the automatic stay pursuant to 11 U.S.C. § 362(d). GRP Fin. Servs. Corp. v. Olsen (In re Olsen), Bankr. (Bankr. N.D. Ga. Jan. 8, 2007).

- While the transfer of negotiable promissory notes secured by an absolute conveyance of land made under O.C.G.A. § 44-14-60, although the transfer be made by endorsement of the payee without recourse upon the payee, will not discharge the land from the incumbrance placed upon it by the deed, yet a mere written transfer, endorsed upon the deed, of the deed itself and the rights of the grantee therein (the payee of the note) will not pass title to the land out of the grantee and into the endorsee of the notes, as to enable the latter to convey the land back to the debtor who executed the deed to secure the notes. Henry v. McAllister, 93 Ga. 667, 20 S.E. 66 (1894).

- The transfer of a negotiable promissory note secured by a deed under the provisions of O.C.G.A. § 44-14-60 although the transfer be made by endorsement of the payee on the note without recourse upon the payee, will not discharge the land from the encumbrance placed upon it by the deed. Henry v. McAllister, 93 Ga. 667, 20 S.E. 66 (1894); Milner v. Wellhouse, 148 Ga. 275, 96 S.E. 566 (1918).

Where a deed was given under the provisions of O.C.G.A. § 44-14-60 to secure the payment of a promissory note, and the original payee afterwards transferred the note without recourse, at the same time conveying to the assignee the title to the land described in the security deed, the latter was entitled to all the rights of the original payee of the note, and all the remedies for enforcing the same. Hunt v. New England Mtg. Sec. Co., 92 Ga. 720, 19 S.E. 27 (1893); Henry v. McAllister, 93 Ga. 667, 20 S.E. 66 (1894); Gillispie v. Hunt, 145 Ga. 490, 89 S.E. 519 (1916).

Where a vendor of land takes notes for the purchase money, securing their payment by reservation of title personally, which notes the vendor afterwards transfers without recourse and without any transfer of the reserve title to a third party, this operates as a payment of the purchase money, the vendee's equity becomes complete, and the vendor ceases to hold any interest in the land. Cade v. Jenkins, 88 Ga. 791, 15 S.E. 292 (1892); Henry v. McAllister, 93 Ga. 667, 20 S.E. 66 (1894).

Where transferee accepts bond as security for an additional loan subject to that specified in the loan deed, the transferee acquires such an equitable interest in the land as will entitle the transferee on sale of the property under the loan deed to a sufficient amount of the proceeds after discharge of the debt secured by the loan deed to satisfy the transferee's debt; and the transferee's right will attach from the time the transferee receives the transfer, and be superior to a subsequent materialman's lien. Guaranty Inv. & Loan Co. v. Athens Eng'g Co., 152 Ga. 596, 110 S.E. 873 (1922).

Subsequent incumbrance of same property by grantor, whether by security deed or mortgage executed by the grantor named in the prior security deed while the grantor retains an equitable estate in the land, will operate upon that equitable estate. Citizens' Bank v. Taylor, 155 Ga. 416, 117 S.E. 247 (1923).

Equitable foreclosure.

- Where security deed, executed subsequent to two deeds to secure debt, was made to secure an indebtedness represented by a promissory note, and on its face recited the debt and the purpose to secure it, the creditor could foreclose the deed as an equitable mortgage, although the grantor therein had been discharged as a bankrupt from the payment of debts. Pusser v. A. J. Thompson & Co., 132 Ga. 280, 64 S.E. 75, 22 L.R.A. (n.s.) 571 (1909); Smith v. Farmers' Bank, 165 Ga. 470, 141 S.E. 203 (1928).

A deed to secure debt may be foreclosed as an equitable mortgage. Lively v. Oberdorfer, 216 Ga. 673, 119 S.E.2d 27 (1961).

- Where a deed under seal was made conveying title in order to secure an indebtedness represented by a promissory note, under O.C.G.A. § 44-14-60, and on its face it recited the debt and the purpose to secure it, although suit on the note became barred by the statute of limitations, the creditor could foreclose the deed as an equitable mortgage within 20 years from its execution. Pusser v. A. J. Thompson & Co., 132 Ga. 280, 64 S.E. 75, 22 L.R.A. (n.s.) 571 (1909).

- A conveyance made under O.C.G.A. § 44-14-60 to secure a debt, and which is void as title on account of usury, cannot be foreclosed as an equitable mortgage. Broach v. Smith, 75 Ga. 159 (1885).

- A deed to real estate, given to secure a debt, may be foreclosed by the grantee as a mortgage, notwithstanding a provision therein that it is to be construed as a deed passing title, and not as a mortgage, such provision being one for the benefit of the grantee, which the grantee may waive at the grantee's election. Merrihew v. Fort, 98 F. 899 (N.D. Ga. 1899).

A deed absolute in form, given as security for a loan of money, and executed contemporaneously with the debtor's notes and with a bond to reconvey, given by the grantee, all in accordance with the provisions of O.C.G.A. § 44-14-60 et seq., may be foreclosed as a mortgage, by an action in equity in a federal court, notwithstanding that these provisions give a special remedy at law; for the equity jurisdiction of the federal courts cannot be limited by state legislation. Ray v. Tatum, 72 F. 112 (5th Cir. 1896).

The fact that the holder of a conveyance brings action to foreclose the same as a mortgage in a federal court does not change its character to that of a plain mortgage, which is only a security and passes no title, so as to let in the claim of the widow of the grantor to an allowance for support out of the property, but such an allowance made in proceedings to which the grantee was not a party can apply only to the grantor's equity of redemption. British & Am. Mtg. Co. v. Worrill, 168 F. 120 (N.D. Ga. 1909).

- Trial court erred in ruling that a bank's claims against borrowers and guarantors for breach of promissory notes were barred as improper deficiency actions under O.C.G.A. § 44-14-161(a) due to the bank's failure to seek confirmation after the foreclosure auctions because although the bank conducted and bid at foreclosure auctions of the real property that secured the notes, the transfer of a borrower's right of possession and the borrower's equity of redemption to the bank as the foreclosure sale purchaser never occurred; three days after the foreclosure auctions, the bank notified the borrowers that the bank rescinded any actions taken with respect to foreclosure and that the foreclosures were not and would not be consummated, and by definition, the confirmation procedure had no application when there had been no foreclosure sale. Legacy Cmtys. Group, Inc. v. Branch Banking & Trust Co., 310 Ga. App. 466, 713 S.E.2d 670 (2011), aff'd in part, rev'd in part, 290 Ga. 724, 723 S.E.2d 674, vacated in part, 316 Ga. App. 496, 729 S.E.2d 612 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Grantor retains equitable rights.

- Despite the strong language of O.C.G.A. § 44-14-60, the grantor in a security deed retains certain equitable rights in the land. 1972 Op. Att'y Gen. No. U72-105.

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Deed of Assignment (for Intellectual Property)

In the realm of intellectual property, a Deed of Assignment is a formal legal document used to transfer all rights, title, and interest in intellectual property from the assignor (original owner) to the assignee (new owner). This is crucial for the correct transfer of patents, copyrights, trademarks, and other IP rights. The deed typically requires specific legal formalities, sometimes notarization, to ensure it is legally enforceable.

To be legally effective a deed of assignment must contain:

• Title of the Document : It should clearly be labeled as a "Deed of Assignment" to identify the nature of the document.
• Date : The date on which the deed is executed should be clearly mentioned.
• Parties Involved : Full names and addresses of both the assignor (the party transferring the rights) and the assignee (the party receiving the rights). This identifies the parties to the agreement.
• Recitals : This section provides the background of the transaction. It typically includes details about the ownership of the assignor and the intention behind the assignment.
• Definition and Interpretation : Any terms used within the deed that have specific meanings should be clearly defined in this section.
• Description of the Property or Rights : A detailed description of the property or rights being assigned. For intellectual property, this would include details like patent numbers, trademark registrations , or descriptions of the copyrighted material.
• Terms of Assignment : This should include the extent of the rights being transferred, any conditions or limitations on the assignment, and any obligations the assignor or assignee must fulfill as part of the agreement.
• Warranties and Representations : The assignor typically makes certain warranties regarding their ownership of the property and the absence of encumbrances or third-party claims against it.
• Governing Law : The deed should specify which jurisdiction's laws govern the interpretation and enforcement of the agreement.
• Execution and Witnesses : The deed must be signed by both parties, and depending on jurisdictional requirements, it may also need to be witnessed and possibly notarized.
• Schedules or Annexures : If there are detailed lists or descriptions (like a list of patent numbers or property descriptions), these are often attached as schedules to the main body of the deed.

Letter of Assignment (for Trademarks and Patents)

This is a less formal document compared to the Deed of Assignment and is often used to record the assignment of rights or licensing of intellectual property on a temporary or limited basis. While it can outline the terms of the assignment, it may not be sufficient for the full transfer of legal title of IP rights. It's more commonly used in situations like assigning the rights to use a copyrighted work or a trademark license.

For example, company X allows company Y to use their trademark for specific products in a specific country for a specific period.  

At the same time, company X can use a Letter of Assignment to transfer a trademark to someone. In this case, it will be similar to the Deed of Assignment. 

Intellectual Property Sales Agreement

An IP Sales Agreement is a detailed contract that stipulates the terms and conditions of the sale of intellectual property. It covers aspects such as the specific rights being sold, payment terms, warranties regarding the ownership and validity of the IP, and any limitations or conditions on the use of the IP. This document is essential in transactions involving the sale of IP assets.

However, clients usually prefer to keep this document confidential and prepare special deeds of assignment or letter of assignment for different countries.

IP Transfer Declaration

In the context of intellectual property, a Declaration is often used to assert ownership or the originality of an IP asset. For example, inventors may use declarations in patent applications to declare their invention is original, or authors may use it to assert copyright ownership. It's a formal statement, sometimes required by IP offices or courts.

When assigning a trademark, the Declaration can be a valid document to function as a proof of the transfer. For example, a director of company X declares that the company had sold its Intellectual Property to company Y. 

Merger Document

When companies or entities with significant IP assets merge, an IP Merger Document is used. This document outlines how the intellectual property owned by the merging entities will be combined or managed. It includes details about the transfer, integration, or handling of patents, copyrights, trademarks, and any other intellectual property affected by the merger.

In all these cases, the precise drafting of documents is critical to ensure that IP rights are adequately protected and transferred. Legal advice is often necessary to navigate the complexities of intellectual property laws.

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Drafting a Deed of Assignment

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Note: Want to skip the guide and go straight to the free templates? No problem - scroll to the bottom. Also note: This is not legal advice.

Introduction

A Deed of Assignment is a vital legal document used to transfer rights, interests or assets between parties. It is regularly used in business transactions, and often regarding real estate or intellectual property. A well-crafted deed of assignment can protect both sides from potential legal disputes, ensuring that everyone involved understands their obligations and responsibilities.

The Genie AI team has seen many instances where having a valid deed of assignment can make all the difference - without it businesses could be exposed to considerable risk. That’s why we offer free templates and step-by-step guides to help those wishing to draft their own deed.

When creating a Deed of Assignment it is important to take the specific circumstances into account - any changes or additions should be accurately documented and agreed by all involved parties beforehand. Furthermore, it is essential that the terms are clearly written out in an unambiguous way so every party knows exactly what they have signed up for. Beyond protecting both sides’ interests, this type of agreement can also be used for copyright assignments, leases, debt transfers and trusts.

Before signing on the dotted line it’s also critical that executing such documentation is done properly - all parties must sign in the presence of a witness who will also affix their signature and date the document accordingly. Once this process has been completed filings must then be made with any relevant government authorities whenever necessary (especially in cases involving real estate or intellectual property transfers).

In summary, drafting a Deed of Assignment not only safeguards everyone’s best interests but also provides additional benefits depending on its use case - reading through our step-by-step guidance below should provide you with more information on how to access our template library today and start benefitting from its advantages without needing to sign up for an account with Genie AI first!

Definitions (feel free to skip)

Legal Binding: When a legally binding document is used, it means that all parties involved are legally obligated to follow the terms and conditions set forth in the document.

Assignor: The assignor is the person who is transferring rights, interests or assets to someone else.

Assignee: The assignee is the person who is receiving the rights, interests or assets from the assignor.

Witness: A witness is an independent third-party who is present when a document is signed, in order to ensure that the process is completed in a secure and legally binding manner.

Stamp: A stamp is an official seal or mark that is used to verify and authenticate a document.

Tax: A tax is a sum of money that is paid to a government or public authority.

Duty: Duty is an obligation or responsibility assigned to someone.

Defining the Deed of Assignment

What is a deed of assignment and what is its purpose, parties involved, who needs to be involved in the making of a deed of assignment, drafting the deed, determine what kind of deed of assignment needs to be drafted, consider the subject matter to be assigned in the deed, research the legal requirements for the kind of deed to be drafted, draft the deed of assignment in accordance with the legal requirements, executing the deed, check that the parties to the deed are correctly identified, confirm that the deed is correctly signed and dated by all parties, confirm that the deed is witnessed by an independent third party, have the deed of assignment properly executed by all parties, registration, determine whether the deed of assignment needs to be registered, if registration is necessary, confirm the registration procedures, take necessary steps to register the deed of assignment, considerations, consider any applicable tax or stamp duty implications of the deed of assignment, consider any restrictions or limitations on the rights being assigned, consider whether the deed of assignment needs to be registered in any public records, common mistakes, not accurately identifying all of the parties to the deed, not having the deed properly executed by all parties, not having the deed witnessed by an independent third party, not considering any applicable tax or stamp duty implications, not considering any applicable restrictions or limitations on the rights being assigned, record keeping, ensure that the original deed of assignment is securely stored, create a digital copy of the deed and store it in a secure manner, review the deed of assignment to ensure accuracy, confirm that all steps have been completed correctly, seek advice from legal professionals if necessary, get started.

• Establish the parties involved in the Deed of Assignment
• Identify the property or service being assigned
• Specify the terms of the assignment
• Ensure the Deed of Assignment is properly witnessed
• Check that all signatures are valid

When you have completed the steps above, you will have successfully defined the Deed of Assignment and can proceed to the next step.

• A deed of assignment is a legal document that is used to transfer the rights and responsibilities of one party (the assignor) to another party (the assignee)
• It is used to transfer contractual rights and obligations between parties
• It should include information such as the names of the parties, the date of the assignment, and the description of the rights transferred
• You will know that you have completed this step when you have an understanding of what a deed of assignment is and why it is used.
• Identify the party transferring their rights (the assignor) and the party receiving the rights (the assignee)
• Draft the deed in the name of both parties, including full names and contact details
• Ensure the deed is signed by both the assignor and assignee
• Once the deed is signed, the parties should exchange copies of the document

Once the assignor and assignee have been identified and the deed has been drafted and signed, you can check this step off your list and move on to the next step.

• Identify the parties involved in the Deed of Assignment. This would typically include the assignor (the party transferring their rights or interest) and the assignee (the party receiving the rights or interest).
• Ensure that all parties involved have the legal capacity to enter into a contract.
• When all parties have been identified and their legal capacity has been verified, you can check this step off your list and move on to drafting the Deed.
• Read the applicable laws in your jurisdiction to determine the required language and structure of the Deed of Assignment
• Gather the necessary information on the parties, the asset being assigned, and other relevant details
• Draft the Deed of Assignment, taking into account all the necessary details
• Make sure the language is clear and unambiguous
• Have the Deed of Assignment reviewed by a legal professional
• When the Deed of Assignment has been drafted and reviewed, you can move on to the next step.
• Identify the type of assignment that needs to be drafted and the legal requirements that need to be satisfied
• Consider the purpose of the Deed and the rights and obligations of the parties to the Deed
• Determine if the Deed is for an absolute or conditional assignment
• Consider if the Deed should be an express or implied assignment
• Determine if the Deed needs to be in writing or if it can be oral
• Check the applicable laws in your jurisdiction to ensure that you are drafting a valid Deed
• Check if there are any additional requirements that need to be included in the Deed

When you can check this off your list: Once you have identified the type of assignment and the relevant legal requirements, you can move on to considering the subject matter to be assigned in the Deed.

• Identify the subject matter of the Deed of Assignment, such as a patent, trademark, copyright, or other intellectual property
• Assess the value of the subject matter and any associated liabilities
• Understand the relationship between the assignor and assignee
• Have all necessary documents, such as a purchase agreement, to provide more detail about the assignment

Once you have identified the subject matter of the Deed of Assignment, assessed its value, understand the relationship between the assignor and assignee, and gathered any additional documents, you can move onto the next step of researching the legal requirements for the kind of Deed to be drafted.

• Research the relevant legislation, case law, and other materials related to the Deed of Assignment to be drafted
• Consult with a lawyer familiar with the relevant law to understand the requirements
• Take detailed notes on the legal requirements that must be adhered to in the Deed of Assignment
• Once you have all the necessary information, double-check that you understand the requirements before moving on to the next step.
• Prepare the text of the Deed, ensuring that all relevant information regarding the parties, the subject matter, and the consideration is included
• Check to make sure the language conforms with relevant laws and regulations
• Have the Deed reviewed by a solicitor to ensure that it complies with all legal requirements
• Once the Deed has been approved by a solicitor, have the parties sign the document
• Once the Deed has been signed by both parties, make multiple copies and ensure each party has a copy
• This step is complete once the Deed has been signed and each party has a copy of the document.
• Ensure both parties sign the Deed of Assignment in the presence of two witnesses who are over the age of 18 and not parties to the Deed
• Have both parties sign the deed in the presence of two witnesses and have the witnesses sign the deed to attest to witnessing the signature of the parties
• Check that the parties have signed the Deed in the presence of the witnesses by noting the signatures and the dates of signature in the execution clause of the Deed
• Once the Deed has been executed, have the parties date and keep a copy of the Deed in a secure place
• You will know that you have completed this step when the Deed has been properly executed by the parties in the presence of two witnesses.
• Identify all parties to the Deed and verify that their details are correct.
• Ensure that all parties to the Deed are identified in the document and that the details of each party are accurate and up-to-date.
• Check that the names, addresses and contact details of each party are correct.
• Once you have verified that the parties and their details are correctly identified, you can move on to the next step.
• Check that all parties have signed the Deed in the correct place, and that the date of signature is correct
• Ensure that each party has signed the Deed in the presence of an independent witness
• Check that all parties have signed the Deed with their full name and title, if applicable
• Confirm that the date of signature is correct and that all parties have signed on the same date
• Once you have verified that all parties have correctly signed and dated the Deed, you can proceed to the next step.
• Ensure that the Deed is witnessed by an independent third party who is not a party to the Deed.
• Ask the third party to sign the Deed and provide their name, address, occupation and date of signing.
• Check that the third party has signed and dated the Deed.
• Once the above is complete, you can check this step off your list and move on to the next step.
• Obtain signatures from all parties on the deed of assignment, ensuring that each party signs in the presence of a witness
• Have an independent third party witness each party’s signature
• Ensure that all parties have a valid form of identification, such as a driver’s license or passport, available for inspection by the witness
• Ensure that all parties sign the deed of assignment in the presence of the witness
• Obtain the witness’ signature, confirming that all parties signed in the presence of the witness
• You will know this step is completed once all parties have signed the deed of assignment and the witness has signed confirming they were present during the signing.
• Obtain a copy of the executed Deed of Assignment from all parties
• Contact the relevant state or territory office to determine whether the Deed of Assignment needs to be registered
• If registration is required, complete the necessary forms, pay the registration fee, and submit the required documents
• Once the Deed of Assignment is registered, the registrar will issue a certificate of registration
• Check off this step when you have received and reviewed the certificate of registration.
• Research the applicable laws and regulations in the relevant jurisdiction to decide if the Deed of Assignment needs to be registered
• Consult a legal professional if unsure
• When you have the answer, you can move on to the next step.
• Confirm what type of Deed of Assignment requires registration with the relevant government agency or registry.
• Research the registration procedures and the requirements you must meet in order to register the Deed of Assignment.
• Obtain any fees or additional documents that are necessary to complete the registration process.
• Ensure that all parties to the Deed of Assignment understand the registration process and the requirements for completing it.

You can check off this step once you have researched and confirmed the registration procedures for the Deed of Assignment.

• Gather the necessary documents for registration, such as the Deed of Assignment, supporting documents, and the applicable fee
• Visit the registration office to register the Deed of Assignment
• Submit the necessary documents to the registration office
• Pay the applicable fee
• Obtain a copy of the registered Deed of Assignment
• Upon completion of the above steps, you can check this off your list and move on to the next step.
• Review and understand the nature of the rights and obligations being assigned
• Determine if there are any restrictions or limitations in the assignment
• Assess if any approvals are needed from third parties before the assignment is valid
• Confirm that the assignor has the right to assign the interest being transferred
• Check to see if the assignee has the necessary capacity to accept the assignment
• Analyze if the assignment is subject to any applicable laws or regulations
• Determine if any additional documentation is needed to support the assignment
• Once you have considered all of the above, you can proceed with drafting the Deed of Assignment.
• Check with your local taxation authority or a qualified tax professional to see if the Deed of Assignment is subject to any taxes or stamp duty.
• Ensure that the Deed of Assignment includes any required taxes or stamp duty payments.
• Check to see if the tax or stamp duty implications vary by jurisdiction.
• Once you’ve considered the tax or stamp duty implications, you can move on to the next step.
• Identify any restrictions or limitations that could affect the transfer of rights in the Deed of Assignment
• Consider whether there are any legal restrictions that must be observed in the transfer of the rights being assigned
• Research any relevant industry standards or regulations to ensure that the restrictions or limitations on the rights being assigned are compliant
• Ensure that the Deed of Assignment clearly outlines the restrictions or limitations of the rights being assigned
• When all restrictions or limitations on the rights being assigned are taken into consideration, checked for compliance and outlined in the Deed of Assignment, this step is complete.
• Consider whether the Deed of Assignment needs to be registered with any government or public agencies.
• Determine if any registration is required or optional.
• Research the relevant regulations and laws to ensure that the assignments are properly recorded.
• Check any local requirements or restrictions.
• Once you have determined that the Deed of Assignment does or does not need to be registered, you can move on to the next step in the process.

• Read over the Deed of Assignment twice to make sure you’re accurately identifying all of the parties to the Deed. Make sure you include the full names and addresses of the assignor and assignee, as well as any other relevant parties. • Check that the legal description of the subject property is accurate. • Ensure that the consideration (the amount being exchanged for the assignment) is stated clearly and accurately. • Make sure that the names of the initial parties to the Deed are also included in the recitals. • Ensure that the recitals and the express terms of the Deed are consistent with one another. • Make sure that the Deed is signed, notarized, and delivered in accordance with state law.

Once you’ve completed the above steps, you can check off this task and move on to the next step in the guide.

• Identify the assignor and assignee. The assignor is the party transferring their rights and the assignee is the party receiving the rights.
• Check all of the details are correct. This includes the names, addresses and other contact information for both parties.
• Draft the deed to ensure that the assignor and assignee are accurately identified.
• You can check this off your list and move on to the next step once you have confirmed that the assignor and assignee have been accurately identified in the deed.
• Ensure that all parties to the Deed have read, understood and agreed to the terms and conditions of the agreement.
• Have all parties affix their signature to the Deed and the accompanying documents.
• Check that all the signatures are dated and in the presence of a witness.
• When all parties have properly executed the Deed, you can move on to the next step.
• Ensure all parties have signed the Deed in the presence of a witness.
• The witness must be an independent third party who is not a party to the Deed.
• The witness must sign each page of the Deed that contains a party’s signature.
• The witness must also include their full name, address and occupation on the Deed.
• Once all of the above requirements are met, then you can check this off your list and move on to the next step.
• Determine the applicable taxes or stamp duty implications for the Deed of Assignment.
• Research any applicable taxes or stamp duty fees for the Deed of Assignment.
• Calculate the applicable taxes or stamp duty fees for the Deed of Assignment.
• Make sure to include the applicable taxes or stamp duty fees in the Deed of Assignment.

Once you have determined the applicable taxes or stamp duty implications for the Deed of Assignment, and included them in the Deed of Assignment, you can move on to the next step.

• Determine the rights that you are assigning and review any applicable laws or regulations to ensure that the assignment of such rights is permitted.
• Consider any applicable contractual restrictions or limitations on the rights being assigned, such as any applicable confidentiality obligations or restrictions on the transfer of rights.
• Once you have determined that the assignment of the rights is permitted and there are no applicable restrictions or limitations, you can proceed to the next step of recording keeping.
• Create a record of the Deed of Assignment, including the date it was executed, by each party
• Maintain a copy of the Deed of Assignment in a secure place
• Record any additional related documents, such as any security documents, release documents, or other agreements
• When all of the above have been done, you can check this off your list and move on to the next step.
• Obtain a physical copy of the original Deed of Assignment
• Ensure the original Deed is signed by both parties
• Keep the original Deed in a safe and secure place, such as a locked filing cabinet or safe
• Make sure the document is stored in a location that is accessible to both parties
• Ensure that the original Deed is not destroyed or tampered with in any way

You can check this off your list and move on to the next step once the original Deed of Assignment is safely stored in a secure location.

• Scan or take a digital photo of the original Deed of Assignment and save it to a secure location.
• Ensure that the digital copy is readable and clearly displays all of the information contained in the original document.
• Ensure that the digital copy is stored in a secure location, preferably on a cloud-based storage system or other secure server.
• Make sure that only authorized personnel have access to the digital copy of the Deed.
• When finished, you will have created a digital copy of the Deed and stored it in a secure manner.
• Read over the Deed of Assignment to ensure accuracy
• Make sure all details are correct, and all parties are named
• Verify that all signatures are complete and accurate
• Make sure the date of the assignment is correct
• Check that the document is formatted and laid out correctly
• Once you are satisfied with the accuracy of the Deed of Assignment, you can move on to the next step.
• Read through the entire document to make sure all the information is correct
• Double check that the names and details of the parties involved are spelled correctly
• Ensure that all the dates are accurate, and that any and all parties have signed the deed in the right places
• Check that the terms and conditions in the deed are consistent with the agreement between the parties
• When you have verified all the details, you can check this off your list and move on to the next step.
• Check the Deed of Assignment to ensure that all required elements are present, including accurate information and signatures of all parties.
• Verify that any and all attachments to the Deed of Assignment are included and accurate.
• Ensure that all dates, signatures, and other pieces of information are accurate and up-to-date.
• Once you’ve confirmed that all of the steps have been completed correctly, you can move on to the next step.
• Seek professional advice from a lawyer or other legal professional to ensure that the deed of assignment is legally binding and enforceable.
• Request that the legal professional checks that all steps have been completed correctly, and that the deed of assignment meets all requirements under local law.
• Ask the legal professional to provide you with written advice on any changes or revisions that may be necessary to make the deed of assignment valid and enforceable.
• Once the legal professional has confirmed that the deed is legally sound, you can check off this step and proceed with the next one.
• Research legal professionals who are able to provide advice and assistance with the drafting of a deed of assignment
• Contact the legal professionals to discuss the specific requirements and details of the deed of assignment
• Ask the legal professionals if they are able to provide advice and assistance with the deed of assignment
• Receive advice from the legal professionals and make changes to the deed of assignment accordingly
• Once you are satisfied with the changes to the deed of assignment, you can move on to the next step.

Q: Does a Deed of Assignment need to be signed?

Asked by John on April 23rd 2022. A: Yes, a Deed of Assignment needs to be signed by both the assignor and the assignee in order for it to be legally binding. The signatures should be witnessed and dated, and should be in front of an independent witness who is not related to either party. It is also important to include the relevant clauses and provisions in the deed, as these will set out the rights and obligations of each party.

Q: What is the difference between an assignment and a novation?

Asked by Sarah on July 29th 2022. A: An assignment is a transfer of rights or obligations from one party to another, while a novation is a transfer of rights or obligations from one party to another with the consent of all parties involved. An assignment does not necessarily require the consent of all parties, while a novation always requires the consent of all parties. Additionally, an assignment can transfer rights or obligations without necessarily extinguishing any pre-existing agreements, while a novation extinguishes any pre-existing agreements.

Q: Is a Deed of Assignment legally binding in different jurisdictions?

Asked by Tyler on October 17th 2022. A: Yes, a Deed of Assignment can be legally binding in different jurisdictions, though the exact requirements for validity may differ from jurisdiction to jurisdiction. In general, however, a Deed of Assignment needs to be signed by both parties and witnessed by an independent third party in order for it to be legally binding. Additionally, the deed should include all relevant clauses and provisions that are applicable in each jurisdiction.

Q: Are there any tax implications when drafting a Deed of Assignment?

Asked by Emma on January 15th 2022. A: Yes, there are tax implications that need to be taken into account when drafting a Deed of Assignment. Depending on the jurisdiction and specific tax laws, there may be tax implications for both parties if they are transferring rights or obligations under the deed. It is important to seek professional tax advice before entering into any agreement that involves transferring rights or obligations between parties as this could have significant financial implications for all involved.

Q: Do I need legal advice when drafting a Deed of Assignment?

Asked by Jacob on June 5th 2022. A: While it is not necessary to seek legal advice when drafting a Deed of Assignment, it is generally recommended in order to ensure that all relevant legal requirements are satisfied and that all involved parties are aware of their rights and obligations under the deed. It is also important to make sure that all language used in the deed is clear and unambiguous so that it can easily be understood by all parties involved.

Q: How can I ensure that my Deed of Assignment is valid?

Asked by Michael on August 28th 2022. A: In order for your Deed of Assignment to be valid, it must meet certain legal requirements which vary between jurisdictions. Generally speaking, your deed should include all relevant clauses and provisions applicable in your jurisdiction as well as signatures from both parties which should be witnessed by an independent third party who is not related to either party involved. Additionally, any language used within the document should be clear and unambiguous so that it can easily be understood by all involved parties.

Q: What information do I need to provide when drafting a Deed of Assignment?

Asked by Ashley on November 10th 2022. A: When drafting a Deed of Assignment, you will need to provide information about both parties involved such as their names, addresses, contact details and any other relevant information required under applicable laws in your jurisdiction. Additionally, you will need to include any relevant clauses or provisions applicable in your jurisdiction which will set out the rights and obligations of each party under the deed as well as any other information required for the document to be legally binding.

Q: What are common mistakes made when drafting a Deed of Assignment?

Asked by Joshua on February 20th 2022. A: One common mistake made when drafting a Deed of Assignment is failing to include all relevant clauses or provisions applicable in your jurisdiction which set out the rights and obligations of each party involved in the agreement. Additionally, failing to have the document signed by both parties or witnessed by an independent third party can render the document invalid or unenforceable under applicable law in some jurisdictions. Moreover, using ambiguous language within the document can also lead to misunderstandings and disputes further down the line which could be avoided if clear language was used throughout the document instead.

Example dispute

Lawsuit referencing a deed of assignment.

• The plaintiff may raise a lawsuit if they have been wronged by the defendant in a way that is outlined in the deed of assignment.
• For example, the deed of assignment may outline that the defendant is responsible for paying a certain amount of money to the plaintiff, and the defendant has failed to do so.
• The plaintiff may also raise a lawsuit if the defendant has failed to adhere to any other obligations laid out in the deed of assignment.
• The plaintiff would need to prove that the defendant has breached the deed of assignment in order to win the lawsuit.
• If successful, the plaintiff may be able to obtain a judgment in their favor, which may require the defendant to pay the plaintiff the money they are owed.
• In addition, the plaintiff may be able to seek other damages, such as punitive damages, if the breach of the deed of assignment was particularly egregious.
• Depending on the severity of the breach, the plaintiff may also be able to seek an injunction to prevent the defendant from continuing to breach the deed of assignment.
• Settlement of the dispute may also be possible, wherein the defendant agrees to pay a certain amount of money to the plaintiff, or agrees to adhere to the obligations laid out in the deed of assignment.

Templates available (free to use)

Deed Of Assignment For Rent Deposits Occupation Lease Deed Of Assignment Of Benefit Of Claim For The Freehold Or Extended Lease House Under Section 8 Or Section 14 Deed Of Assignment Of Equitable Interest In Residential Land Deed Of Assignment Of Goodwill And Intellectual Property Rights Transfer Of A General Partnership To An Llp Deed Of Assignment Of Property Sale Benefits [Section 42 Deed Of A

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Deed of Trust, Assignment of Leases and Rents, Security Agreement, Financing Statement, and Fixture Filing (Pro-Lender Short Form) | Practical Law

Deed of Trust, Assignment of Leases and Rents, Security Agreement, Financing Statement, and Fixture Filing (Pro-Lender Short Form)

Practical law standard document w-012-7159  (approx. 51 pages).

Assignments: why you need to serve a notice of assignment

It's the day of completion; security is taken, assignments are completed and funds move. Everyone breathes a sigh of relief. At this point, no-one wants to create unnecessary paperwork - not even the lawyers! Notices of assignment are, in some circumstances, optional. However, in other transactions they could be crucial to a lender's enforcement strategy. In the article below, we have given you the facts you need to consider when deciding whether or not you need to serve notice of assignment.

What issues are there with serving notice of assignment?

Assignments are useful tools for adding flexibility to banking transactions. They enable the transfer of one party's rights under a contract to a new party (for example, the right to receive an income stream or a debt) and allow security to be taken over intangible assets which might be unsuitable targets for a fixed charge. A lender's security net will often include assignments over contracts (such as insurance or material contracts), intellectual property rights, investments or receivables.

An assignment can be a legal assignment or an equitable assignment. If a legal assignment is required, the assignment must comply with a set of formalities set out in s136 of the Law of Property Act 1925, which include the requirement to give notice to the contract counterparty.

The main difference between legal and equitable assignments (other than the formalities required to create them) is that with a legal assignment, the assignee can usually bring an action against the contract counterparty in its own name following assignment. However, with an equitable assignment, the assignee will usually be required to join in proceedings with the assignor (unless the assignee has been granted specific powers to circumvent that). That may be problematic if the assignor is no longer available or interested in participating.

Why should we serve a notice of assignment?

The legal status of the assignment may affect the credit scoring that can be given to a particular class of assets. It may also affect a lender's ability to effect part of its exit strategy if that strategy requires the lender to be able to deal directly with the contract counterparty.

The case of General Nutrition Investment Company (GNIC) v Holland and Barrett International Ltd and another (H&B) provides an example of an equitable assignee being unable to deal directly with a contract counterparty as a result of a failure to provide a notice of assignment.

The case concerned the assignment of a trade mark licence to GNIC . The other party to the licence agreement was H&B. H&B had not received notice of the assignment. GNIC tried to terminate the licence agreement for breach by serving a notice of termination. H&B disputed the termination. By this point in time the original licensor had been dissolved and so was unable to assist.

At a hearing of preliminary issues, the High Court held that the notices of termination served by GNIC , as an equitable assignee, were invalid, because no notice of the assignment had been given to the licensee. Although only a High Court decision, this follows a Court of Appeal decision in the Warner Bros Records Inc v Rollgreen Ltd case, which was decided in the context of the attempt to exercise an option.

In both cases, an equitable assignee attempted to exercise a contractual right that would change the contractual relationship between the parties (i.e. by terminating the contractual relationship or exercising an option to extend the term of a licence). The judge in GNIC felt that "in each case, the counterparty (the recipient of the relevant notice) is entitled to see that the potential change in his contractual position is brought about by a person who is entitled, and whom he can see to be entitled, to bring about that change".

In a security context, this could hamper the ability of a lender to maximise the value of the secured assets but yet is a constraint that, in most transactions, could be easily avoided.

Why not serve notice?

Sometimes it's just not necessary or desirable. For example:

• If security is being taken over a large number of low value receivables or contracts, the time and cost involved in giving notice may be disproportionate to the additional value gained by obtaining a legal rather than an equitable assignment.
• If enforcement action were required, the equitable assignee typically has the option to join in the assignor to any proceedings (if it could not be waived by the court) and provision could be made in the assignment deed for the assignor to assist in such situations. Powers of attorney are also typically granted so that a lender can bring an action in the assignor's name.
• Enforcement is often not considered to be a significant issue given that the vast majority of assignees will never need to bring claims against the contract counterparty.

Care should however, be taken in all circumstances where the underlying contract contains a ban on assignment, as the contract counterparty would not have to recognise an assignment that is made in contravention of that ban. Furthermore, that contravention in itself may trigger termination and/or other rights in the assigned contract, that could affect the value of any underlying security.

What about acknowledgements of notices?

A simple acknowledgement of service of notice is simply evidence of the notice having been received. However, these documents often contain commitments or assurances by the contract counterparty which increase their value to the assignee.

Best practice for serving notice of assignment

Each transaction is different and the weighting given to each element of the security package will depend upon the nature of the debt and the borrower's business. The service of a notice of assignment may be a necessity or an optional extra. In each case, the question of whether to serve notice is best considered with your advisers at the start of a transaction to allow time for the lender's priorities to be highlighted to the borrowers and captured within the documents.

For further advice on serving notice of assignment please contact Kirsty Barnes or Catherine Phillips  from our Banking & Finance team.

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CALIFORNIA DOCUMENT FORMS

Abandonment of Homestead - Declaration ​Acknowledgment Page

Acknowledgment of Satisfaction of Judgment

​Affidavit - Death of Join Tenant

Affidavit-Death of Transferor Under Revocable Transfer on Death Deed Affidavit - Death of Trustee - Succession of Successor Trustee Affidavit - Death of Trustee

​Affidavit of Death - Terminating Life Estate Interest Affidavit by Surviving Spouse - Section 13540 Probate Affidavit of Mailing All-Inclusive Deed of Trust and Assignment of Rents

​All Inclusive Deed of Trust and Assignment of Rents (Long Form) All-Inclusive Note Secured By Deed of Trust to Chicago Title Company as Trustee

Assignment of Deed of Trust Assignment of Mortgage Assignment of Note California All Purpose Acknowledgement Certification of Trust

Change of Ownership Statement by County

Change of Ownership upon Death by County Claim of Lien

​Claim for Reassessment Exclusion for Transfer Between Parent and Child (Locate Your County)

Claim for Reassessment Exclusion for Transfer Between GrandParent and GrandChild (Locate Your County)

​Corrective Affidavit for Minor Re-Recording Correction

​ Declaration of Homestead Declaration of Abandonment of Homestead Declaration of Non-Military Service Deed in Lieu of Foreclosure Deed of Trust with Assignment of Rents as Additional Security ​Deed of Trust with Assignment of Rents 

Deed of Trust with Assignment of Rents (Short Form)

​ Deed of Trust - Modification and Supplement Estoppel Affidavit

Full Reconveyance

Grant Deed - Interspousal

Grant Deed - Interspousal Transfer Grant Deed ​

Grant Deed - Interspousal Specific R&T63​ Grant Deed - Right of Survivorship​

​Grant Deed - Interspousal Community Property w/Right of Survivorship Grant Deed

​Grant Deed - Trust Transfer

Homeowners' Exemption by County

Homestead Declaration Interspousal Grant Deed Form 1 Interspousal Grant Deed Form 2 Interspousal Grant Deed ​ Interspousal Transfer Grant Deed

​Interspousal Grant Deed Specific R&T63

Interspousal Grant Deed Community Property w/Right of Survivorship Long Form Security Installment Land Contract with Power of Sale and Request for Notice of Default Prior Loan Paymen​t Memorandum of Option

​Military Discharge Recording Sheet

​Military Non-Service Declaration Modification and Supplement Deed of Trust Mortgage

NEW CONSTRUCTION EXCLUSION FROM REASSESSMENT

Non-Military Service Declaration

​Note Secured by Deed of Trust (Interest Included)

​Note Secured by Deed of Trust (Interest Extra)

Note Secured by Deed of Trust (Straight Note)

Note Secured by Deed of Trust (Straight Note - Interest Only)

Notice of Cessation Notice of Completion Notice of Default and Election to Sell Under Deed of Trust Important Notice

​Notice of Default and Election to Sell Under Deed of Trust Cover Language Notice of Non-Responsibility   Notice of Rescission Notice of Termination of Right of First Refusal   Notice of Trustee's Sale

​Notice of Trustee's Sale Cover Language 

​ Option to Purchase (FKA Memorandum of Option) Partial Reconveyance Power of Attorney   Preliminary Change of Ownership (By County)

ProLink Acknowledgement  Publication of Authorization Quitclaim Deed Recorders Cover Page Release of Claim of Mechanic_x27_s Lien Request for Full Reconveyance Request for Notice  Request for Partial Reconveyance

Recording Exemption Cover Page for Building Homes & Jobs Act (SB2)

​Rescission of Reconveyance

​Rescission of Partial Reconveyance Rescission of Trustee's Deed

​Satisfaction of Judgment Satisfaction of Mortgage Specific Release of LIen as to Specific Property Statement of Information Spanish Statement of Information Subordination Agreement Substitution of Trustee and Deed of Full Reconveyance Substitution of Trustee

​Transfer on Death (TOD) Deed (Revocable) 

​Transfer on Death Deed (Revocation of Revocable)  Trust Certification Trust Transfer Grant Deed Form Trustee's Deed Upon Sale Uninsured Affidavit​

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Term and Conditions

The Assessor has developed an on line tool to look up basic information, such as assessed value and assessor's parcel number (APN), for real property in Santa Clara County.

Currently you may research and print assessment information for individual parcels free of charge. This system is best viewed using Internet Explorer 8.0 or higher and a screen resolution of 1024 x 768.

Please contact us with your comments or suggestions. If you have any questions or comments e-mail us. Your feedback is important in determining the type of and demand for services needed by the public.

This service has been provided to allow easy access and a visual display of County Assessment information. A reasonable effort has been made to ensure the accuracy of the data provided; nevertheless, some information may be out of date or may not be accurate. The County of Santa Clara assumes no responsibility arising from use of this information. ASSOCIATED DATA ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, either expressed or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Do not make any business decisions based on this data before validating the data. [Revenue and Taxation Code Section 408.3(c)]

California Government Code 6254.21 states that "No state or local agency shall post the home address or telephone number of any elected or appointed official on the Internet without first obtaining the written permission of that individual." As the cost to collect and continuously update that information is prohibitive, the On-Line Property Assessment Information System does not display the Assessee name information.

The information contained in this web site is for the current owner of record only. Current owner history displayed is available for up to the most current three years only. If the ownership has changed during the past three years, the information displayed will only be for the most recently closed assessment roll. Certificates of title of mobile homes are processed through the California Housing and Community Development (HCD). For more information on certificates of title or ownership you can visit their web site at: www.hcd.ca.gov.

Any resale of this information is prohibited.

Change in Ownership

What constitutes a change in ownership? Are there any exclusions from the reassessment?

An exclusion occurs when the assessor does not reassess a property because the property or portions of the property are automatically excluded from reassessment or is eligible to be excluded if the owner properly files a claim. The following list covers most changes in ownership that are excluded from reassessment, either automatically or by claim; however, there may be other excludable qualifying transactions not listed here. Thus, you should contact your local assessor or an attorney if you have a specific transaction that you would like to discuss.

Please be advised that on November 3, 2020, voters approved Proposition 19 (Home Protection for Seniors, Severely Disabled, Families and Victims of Wildfire or Natural Disasters Act), which makes sweeping changes to a property owner’s ability to transfer their Proposition 13 Assessed Value. It also may change the process for claiming exclusions. Parts of the new law become effective on February 16, 2021, and parts effective on April 1, 2021. The most current information about the implementation of Proposition 19 is available at Proposition 19

Changes in ownership that require a claim to be filed to avoid reassessment include the following:

Changes in ownership that are possibly excluded from reassessment and do not require a claim form include the following (additional information may be requested):

• Transfers of real property between spouses, which include transfers in and out of a trust for the benefit of a spouse, the addition of a spouse on a deed, transfers upon the death of a spouse, and transfers pursuant to a divorce settlement or court order ( section 63 of the Revenue and Taxation Code; Rule 462.220 ).
• Transfers of real property between registered domestic partners that occur on or after January 1, 2006, which include transfers in and out of a trust for the benefit of a partner, the addition of a partner on a deed, transfers upon the death of a partner, and transfers pursuant to a settlement agreement or court order upon the termination of the domestic partnership ( section 62(p) of the Revenue and Taxation Code).
• Transactions only to correct the name(s) of the person(s) holding title to real property or transfers of real property for the purpose of perfecting title to the property (for example, a name change upon marriage).
• Transfers of real property between co-owners that result in a change in the method of holding title to the property without changing the proportional interests of the co-owners, such as a partition of a tenancy in common.
• Transfers between an individual or individuals and a legal entity or between legal entities, such as a co-tenancy to a partnership, or a partnership to a corporation, that results solely in a change in the method of holding title to the real property and in which proportional ownership interests of the transferors and the transferees, whether represented by stock, partnership interest or otherwise, in each and every piece of real property transferred, remains the same after the transfer.
• The creation, assignment, termination, or reconveyance of a lender's security interest in real property or any transfer required for financing purposes only (for example, co-signor).
• The substitution of a trustee of a trust or mortgage.
• Transfers that result in the creation of a joint tenancy in which the transferor remains as one of the joint tenants.
• Transfers of joint tenancy property to return the property to the person who created a joint tenancy (i.e., the original transferor).
• Transfers of real property to a revocable trust, where the transferor retains the power to revoke the trust or where the trust is created for the benefit of the transferor or the transferor's spouse.
• Transfers of real property into a trust that may be revoked by the creator/grantor who is also a joint tenant, and which names the other joint tenant(s) as beneficiaries when the creator/grantor dies.
• Transfers of real property to an irrevocable trust for the benefit of the creator/grantor or the creator/grantor's spouse.

Related items

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• Temporary Decline in Market Value (Proposition 8)

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