​When a seller is involved in a pending divorce in Georgia, it can directly impact the ability to convey clear, marketable title. For REALTORS®, this is not just a personal matter between spouses — it is a legal issue that can affect the validity of a sale and expose everyone involved to serious risk.
Why does a pending divorce matter?
Under Georgia law, most real property acquired during a marriage — especially the marital residence — is considered a marital asset for purposes of equitable division. That means the divorce court has authority to decide how the property will ultimately be handled.
A common misconception is that a home will simply be sold and the proceeds divided. In reality, the court may award the actual property to one spouse instead of ordering a sale. Until the divorce issues are resolved, ownership rights may be uncertain.
Even a spouse who is not listed on title can have an equitable interest in the property. Because of that interest, their cooperation — and often their signature — may be required to properly transfer title.
The risk of getting it wrong
Improper handling of property tied to a divorce can have severe consequences:

• A closing could be challenged or invalidated
• The parties could face significant legal liability
• A court could order the property returned to one of the spouses
• In extreme cases, title could be taken back from the buyer

This is not theoretical. Georgia courts have broad authority in domestic relations matters, and real estate transactions can become entangled in divorce litigation if not handled correctly.
Agent Pro Tip: Always ask
REALTORS® should routinely ask every seller:
“Are you currently involved in a divorce, or is a divorce likely to be filed during the listing period?”
Even sellers who appear cooperative and amicable may be in the middle of divorce proceedings and never volunteer that information unless directly asked.
Sometimes a spouse will file a Lis Pendens in the county real estate records to give notice of a claim related to the property or sale proceeds. However, this is not always done. If no notice is recorded and the closing attorney is not informed, the issue may go undetected.
Why a title search won’t necessarily catch it
Many agents assume a divorce will automatically appear in a title exam. In Georgia, that is not the case.
Divorce filings are civil court matters maintained in Superior Court records — a completely separate system from land records. Georgia title standards do not require attorneys to search civil complaint indexes as part of a routine title exam.
Additional complications include:

• The divorce may be filed in any of Georgia’s 159 counties
• The parties may be in pre-filing stages with no public record yet
• There may be pending agreements not reflected in land records

Without disclosure from the seller, the closing attorney may never know the divorce exists.
What attorneys must evaluate before closing
When a divorce is involved, attorneys must determine how — and whether — the decree affects title. Key questions include:
1. Is the divorce decree legally valid and final?
The court must have jurisdiction over the parties and the property, and the decree must not be subject to appeal.
2. How is title currently held?

• One spouse only
• Both spouses jointly
• Tenants in common

3. Does the decree transfer ownership?
Most Georgia divorce decrees do not automatically vest title in one spouse. If the decree intends to transfer ownership, a certified copy often must be recorded in county land records to provide notice.
4. Is a deed required?
If the decree orders one spouse to convey their interest (for example, a quitclaim deed), that deed must be executed to complete the transfer. A court order alone is usually not enough.
The bottom line for Georgia REALTORS®
A pending divorce is not just a personal detail — it is a material fact that can affect marketable title and the validity of a sale. Early disclosure protects:

• The buyer
• The seller
• The agent
• The closing attorney
• The transaction itself

The safest practice is simple: ask every time, document the answer, and alert the closing attorney immediately if a divorce is involved.

​The Georgia REALTORS® Purchase and Sale Agreement includes clear rules for resolving conflicts or inconsistencies within the contract. These rules help buyers, sellers, and brokers understand which provisions control when multiple sections appear to say different things.
Order of Priority in the Agreement
When provisions conflict, the agreement is interpreted using the following hierarchy:

1. Handwritten changes take priority over any pre-printed or typed language.
2. Exhibits override the main body of the agreement.
3. Special Stipulations control over both the exhibits and the main agreement, including any handwritten changes.
4. FHA or VA Amendatory Clauses supersede conflicting provisions elsewhere in the agreement. Notably, the “Agreement to Seek Amendment to Purchase Price Prior to Termination” in FHA or VA exhibits is not considered a conflict with the Amendatory Clause.

Enforceability and Broker Compensation
The agreement (and any amendments) is generally enforceable between the buyer and seller even without broker signatures. However, if any provision changes a broker’s agreed-upon compensation, that change is only binding if the affected broker provides written consent.
If a Buyer’s Broker Compensation Exhibit is included, the agreement is not enforceable unless it is properly initialed by the required broker(s).
Special Stipulations Written by Brokers
When a broker drafts special stipulations on behalf of a party, that party, per the GAR agreement:

• Confirms the stipulations accurately reflect their intent,
• Accepts them as if they wrote them personally, and
• Agrees to indemnify the broker from claims arising from those stipulations.

Broker Disclosures and Information Sources
If a broker answers questions or describes aspects of the property or transaction, that information is presumed to come from the seller—not from the broker’s independent investigation—unless the broker provides a separate written disclosure stating otherwise.

Proper Notice is an important part of the real estate transaction. Improper notice can leave the party giving notice at risk, especially if the party giving notice intends to terminate a contract. 
The GAR Contract requires all notices to be in writing, legible and signed by the party giving the notice. An email or text message is not an acceptable form of notice. In the event of a dispute regarding notice, the burden shall be on the party giving notice to prove delivery.
Notices can be in person, by courier, overnight delivery service, certified mail; or by email or facsimile. To determine if property notice was sent, ask these five questions.

1. Was notice sent using a permissible means of notice set forth in the contract?
2. Was notice timely delivered and received?
3. Was the notice given by the right party?
4. Was the notice received by the right party?
5. Was the notice sent to the correct address of the party receiving the notice that was included in the purchase contract?

Who is allowed to receive notice? Except where the Broker is acting in a dual agency capacity, the Broker and any affiliated license of the Broker representing a party in a client relationship is authorized agents of the party for the limited purpose of receiving notice. Notice to an authorized agent must be sent to an address, facsimile number or email address listed in the purchase contract. Notice to an unrepresented party must go to the party directly to the address listed in the purchase contract.
GAR has a form F816 that can be used for the purpose of giving notice. It is important that the party giving notice sign the notice before sending to the other party.
Notice section from the GAR Purchase & Sale Agreement:                                                                                     
C.1 Notices.
a. Generally: All notices given hereunder shall be in writing, legible and signed by the party giving the notice. In the event of a dispute regarding notice, the burden shall be on the party giving notice to prove delivery. The requirements of this notice paragraph shall apply even prior to this Agreement becoming binding. Notices shall only be delivered: (1) in person; (2) by courier, overnight delivery service or by certified or registered U.S. mail (hereinafter collectively “Delivery Service”); or (3) by e-mail or facsimile. The person delivering or sending the written notice signed by a party may be someone other than that party.
b. Delivery of Notice: A notice to a party shall be deemed to have been delivered and received upon the earliest of the following to occur: (1) the actual receipt of the written notice by a party; (2) in the case of delivery by a Delivery Service, when the written notice is delivered to an address of a party set forth herein (or subsequently provided by the party following the notice provisions herein), provided that a record of the delivery is created; (3) in the case of delivery electronically, on the date and time the written notice is electronically sent to an e-mail address or facsimile number of a party herein (or subsequently provided by the party following the notice provisions herein) even if it is not opened by the recipient. Notice to a party shall not be effective unless the written notice is sent to an address, facsimile number or e-mail address of the party set forth herein (or subsequently provided by the party following the notice provisions herein).
c. When Broker Is Authorized to Accept Notice for Client: Except where the Broker is acting in a dual agency capacity, the Broker and any affiliated licensee of the Broker representing a party in a client relationship shall be authorized agents of the party for the limited purpose of receiving notice and such notice to any of them shall for all purposes herein be deemed to be notice to the party. Notice to an authorized agent shall only be effective if the written notice is sent to an address, facsimile number or e-mail address of the authorized agent set forth herein (or subsequently provided by the authorized agent following the notice provisions herein) whether or not it is not opened by the recipient. Except as provided for herein, the Broker’s staff at a physical address set forth herein of the Broker or the Broker’s affiliated licensees are authorized to receive notices delivered by a Delivery Service. The Broker, the Broker’s staff and the affiliated licensees of the Broker shall not be authorized to receive notice on behalf of a party in any transaction in which a brokerage engagement has not been entered into with the party or in which the Broker is acting in a dual agency capacity. In the event the Broker is practicing designated agency, only the designated agent of a client shall be an authorized agent of the client for the purposes of receiving notice.
​

Georgia law gives landlords and tenants broad freedom to negotiate lease terms — but
that freedom stops where the law or public policy steps in. Certain clauses are
unenforceable or illegal under Georgia’s Residential Landlord and Tenant Act
(O.C.G.A. Title 44, Chapter 7) and related regulations.
Clauses That Cannot Be Included:
1. Waiving the Landlord’s Legal Duties
A lease cannot state that the landlord has no obligation to maintain or repair the property, or that the tenant accepts the unit “as is” with no habitability rights. Landlords must comply with state and local housing codes and keep premises safe and livable.
2. Ignoring Security-Deposit Laws
Provisions that say the landlord doesn’t have to follow Georgia’s security-deposit requirements — such as holding funds in escrow or providing an itemized list of deductions — are void (O.C.G.A. § 44-7-30 et seq.). The landlord cannot take more than two months rent for security deposit.
3. One-Sided Attorney-Fee or Waiver Clauses
A tenant cannot be forced to pay a landlord’s attorney fees “no matter what,” or waive rights to contest habitability or damages. Such terms are unfair and unenforceable.
4. Clauses That Override Georgia or Local Law
A lease cannot say that Georgia laws or city ordinances don’t apply. State and local housing codes govern by default and cannot be waived by contract.
5. Discriminatory or Unlawful Terms
Language restricting families with children, people with disabilities, or other protected groups violates the Georgia Fair Housing Act and federal Fair Housing Act.
6. Excessive or Unconscionable Fees
Georgia allows reasonable late fees and charges, but not punitive or extreme penalties that go beyond actual damages.
7. Indemnifying the Landlord’s Own Negligence
A tenant cannot be required to hold the landlord harmless for the landlord’s own failure to maintain the property or for negligence causing injury or damage.
For More Information on Georgia Landlord Tenant Laws:
Georgia Landlord Tenant Handbook

Affiliated Business Arrangement Disclosure (ABAD): Compliance Guidelines for Brokers and Agents
Under the Real Estate Settlement Procedures Act (RESPA), there are specific disclosure requirements when it comes to settlement service providers (such as lenders, title companies, appraisers, real estate brokers, attorneys, home warranty companies, etc.). Here are the key ones:
1. Affiliated Business Arrangement Disclosure (ABAD)

• If a real estate brokerage, lender, or other settlement service provider refers a consumer to a company with which they have an ownership or other beneficial interest, they must provide a written Affiliated Business Arrangement Disclosure (ABAD) at or prior to the time of referral.
• The disclosure must:
  • Identify the nature of the relationship (ownership or other financial interest).
  • Disclose the estimated charge or range of charges generally made by the referred provider.
  • State that the consumer is not required to use the referred provider and is free to shop for services elsewhere.

2. Required Use Prohibition

• RESPA prohibits requiring a borrower to use a specific settlement service provider (except for attorney, credit reporting agency, or appraiser chosen by the lender to represent its own interests).

3. Kickbacks and Unearned Fees

• Settlement service providers must disclose any compensation arrangements that could create a conflict of interest.
• RESPA strictly prohibits kickbacks, referral fees, or fee-splitting between providers unless they are for actual, bona fide services rendered.

4. Good Faith Estimate (GFE) / Loan Estimate (LE) Disclosures

• Before TRID replaced the old GFE in 2015, lenders had to disclose a Good Faith Estimate of settlement charges.
• Now, under TRID (which incorporates RESPA and TILA), the Loan Estimate and Closing Disclosure are required.
  • These documents disclose the settlement service providers and their costs, including whether the consumer can shop for those services.

Overall, RESPA ensures that consumers are fully informed about settlement service relationships, costs, and their freedom of choice—while prohibiting abusive practices like kickbacks and forced use.

A Must for Georgia Agents
When representing a seller in Georgia, it’s critical to ensure the Community Association Disclosure is completed fully and accurately. This GAR form gives buyers a clear picture of the financial obligations tied to the property. Errors or omissions can create disputes, delay closings, or expose your client to liability.
Key Fees to Verify

• Initiation Fees – One-time charges when the buyer joins the association.
• Transfer Fees – Costs to update records at closing.
• Administrative/Move-In Fees – Orientation, inspections, or paperwork fees.
• Recurring Assessments – Monthly, quarterly, or annual dues.
• Special Assessments – Additional charges for projects or repairs.

Why Accuracy Matters

• Protects Your Client: Incorrect fee disclosure can result in claims of misrepresentation.
• Avoids Delays: Lenders and closing attorneys rely on these figures for settlement.
• Strengthens Trust: Accurate disclosures show professionalism and help buyers make informed decisions.

Best Practices for Agents

• Request a written fee sheet directly from the HOA/management company before listing.
• Double-check for pending or approved special assessments.
• Remind sellers that if fees change before closing, they must update the disclosure.
• Educate your clients: Emphasize that accuracy protects them just as much as the buyer.

 
Who Pays What? Understanding Transfer, Initiation, and Administrative Fees and who pays them?
Buyer Pays: Buyer shall pay any initiation fee, capital contribution, new member fee, transfer fee, new account set-up fee, fees similar to the above but which are referenced by a different name, one-time fees associated with closing of the transaction and fees to transfer keys, gate openers, fobs and other similar equipment (collective, “Transfer, Initiation, and Administrative Fees) to the extent the total amount due is accurately disclosed above. Advance assessments due at Closing for a period of time after Closing, shall not be Transfer, Initiation, and Administrative Fees and shall be paid by Buyer.
Seller Pays: Seller shall pay any Transfer, Initiation, and Administrative Fees in excess of the amount disclosed on the community association disclosure. In the event seller fills in the above blank with “N/A”, or anything other than a dollar amount, or is left empty, it shall be the same as Seller filling in the blank with $0.00. The seller will be required to pay any fee in excess of the amount disclosed.
Bottom line for agents: Take the lead on verifying HOA fees. Doing so prevents headaches, protects your seller, and ensures smoother closings.

​In Georgia real estate, the Brokerage Relationships in Real Estate Transactions Act (BRRETA) mandates the disclosure of material relationships. A material relationship that should be disclosed is any personal, familial, or business connection between a broker or their affiliated licensees and a client that could impair their ability to exercise fair judgment relative to another client. This disclosure is crucial to avoid conflicts of interest and ensure transparency in transactions. 
In essence, real estate agents must tell their clients if they have any personal, family, or business connections with someone involved in the deal on the other side of the transaction that could affect their ability to be fair. This rule helps make sure everyone is treated honestly and knows about any possible conflicts of interest. It is all about keeping things open and fair for everyone involved. Full and timely disclosure is essential for maintaining ethical and legal standards in Georgia real estate. 
What is a considered Material Relationship that should be disclosed?
BRRETA defines a material relationship that should be disclosed as one where a broker or their affiliated licensees have a personal, familial, or business connection with a client that could compromise their ability to make impartial decisions in dealings with another client. 

• Personal:

This could include friendships, close social connections, or past relationships.

• Familial:

This encompasses relationships by blood or marriage, such as siblings, parents, children, or in-laws.

• Business:

This includes any past or present business partnerships or ventures, even if the relationship is with a client's spouse or past client.
Why is Disclosure Required?
Disclosure is necessary to:

• Avoid Conflicts of Interest:

When a broker has a material relationship with a client, it can create a potential conflict of interest, particularly when representing other clients in the same transaction.

• Maintain Transparency:

Full disclosure ensures that all parties involved in a transaction are aware of any potential biases or relationships that could affect the broker's judgment.

​To whom should the material relationship be disclosed?
BRRETA specifically requires brokers to disclose material relationships to all parties involved in a real estate transaction. 
In summary, to stay compliant with Georgia law and maintain trust, real estate agents must disclose any personal, family, or business relationships that could impact their fairness in a transaction. Transparency protects everyone and helps ensure an ethical, conflict-free process.

Selling an unfinished new construction home can present unique challenges and risks. Here are key things to watch out for to protect yourself and ensure a smooth transaction—whether you're the builder, purchaser, or agent:
​
Construction & Permit Considerations
1. Permits & Inspections:

• Ensure all required permits have been pulled and are current.
• Confirm the home has passed all inspections up to its current phase (e.g.,foundation, framing, plumbing rough-in).

2. Zoning & Code Compliance:

• Verify the property complies with local zoning regulations and building codes.
• Ensure there are no violations or stop-work orders.

Financing & Appraisal Issues
3. Financing Limitations:

• Many lenders won’t finance an unfinished home through traditional
• mortgage products.
• Cash buyers or construction-to-permanent loans may be required.

4. Appraisal Complications:

• It can be difficult to appraise the value of an incomplete home.
• Consider getting a construction cost breakdown and list of materials already purchased to assist appraisers.

Legal & Contractual Protections
5. Unfinished Systems and Finishes

• Note unfinished systems (HVAC, plumbing, electrical) and incomplete finishes (drywall, flooring, fixtures).

6. Builder Warranty / No Warranty:

• Be clear whether the home includes any builder warranty or is sold with no warranty.
• If the new owner will be responsible for completing construction, clarify that no performance warranty applies to future work.

7. Liens or Contractor Disputes:

• Check for any mechanic’s liens or unpaid contractor/vendor balances.
• Ensure the title is clear of construction-related encumbrances.

8. Liability

• Make sure the property is “reasonably safe” before allowing potential buyers into the property.
• If concerned that the property is not “reasonably safe”, insist that any person wishing to enter the property despite unfinished state signs a blanket disclosure such as a hold harmless agreement.
• Do not allow persons on the property unless the owner or owner’s agent accompanies and leads the prospective buyer.

In summary, when representing a seller with an unfinished new construction home, it’s critical to approach the listing with diligence and clarity. Ensure all permits and inspections are accounted for, be upfront about what’s completed versus what remains, and educate your seller on financing limitations that may affect buyer eligibility. Address any potential safety concerns before showings and use proper disclosures to protect all parties involved. By setting realistic expectations and staying proactive, you position yourself as a knowledgeable advisor and help ensure a smooth and professional transaction from listing to close.

The Georgia Brokerage Relationships in Real Estate Transactions Act (BRRETA) defines ministerial acts as presented below. It is important to note that the definition uses words such as “providing, identifying, and locating.” These verbs do not involve using expert knowledge or providing counseling or consulting.
A Transaction Broker can only provide ministerial acts and does not have an agency relationship with any party. 10-6A-14. Ministerial acts explained; …
(a) A Broker acting as a Transaction Broker may provide assistance to buyers, sellers, tenants, and landlords by performing ministerial acts. Examples of ministerial acts which can be performed by the Transaction Broker on behalf of any of the parties in a real estate transaction include without limitation the following:
(1) Identifying property for sale, lease, or exchange;
(2) Providing real estate statistics and information on property;
(3) Providing preprinted real estate form contracts, leases, and related exhibits and addenda;
(4) Acting as a scribe in the preparation of real estate form contracts, leases, and related exhibits and addenda;
(5) Locating architects, engineers, surveyors, inspectors, lenders, insurance agents, attorneys, and other professionals; and
(6) Identifying schools, shopping facilities, places of worship, and other similar facilities on behalf of any of the parties in a real estate transaction. BRRETA further details the obligations of a Transaction Broker in timely disclosing material facts regarding physical conditions of the property, improvements, and neighborhood.
See BRRETA for further details. In addition to Rule 520-1-.07 (6), understanding the definition of ministerial acts can be useful in determining what activities unlicensed support personnel/assistants can provide for Licensees. The key issue is to determine if the activity requires discretion, judgment, or expert knowledge. If it is unclear if an activity is practicing real estate brokerage, then it is best handled by a Licensee. BRRETA lists and defines the duties and obligations of agency relationships in real estate with sellers, buyers, landlords, and tenants. A review of BRRETA could be a training opportunity to meet requirements of the Broker in providing training to Licensees.
BRRETA makes a clear distinction by defining “Agency” and Transaction Broker:
 “Agency” means every relationship in which a real estate Broker acts for or represents another as a client by the latter’s written authority in a real property transaction. “Transaction Broker” means a Broker who has not entered into a client relationship with any of the parties to a particular real estate transaction and who performs only ministerial acts on behalf of one or more of the parties, but who is paid valuable consideration by one or more parties to the transaction pursuant to a verbal or written agreement for performing brokerage services.
From: Monthly Newsletter of the Georgia Real Estate Commission April 2025 Volume 21 Issue 4

Yes, using “prevailing rate” for the interest rate is generally acceptable. Unlike those contracts that list rates as “TBD”, a contract contingent on the buyer being able to obtain a loan for a certain amount with interest payable “at the current prevailing rate” is generally enforceable.

When interest rates are changing, it's common for contracts to include a term that says the buyer will accept a loan at the “current prevailing rate.” This doesn't make the contract unclear, because that rate is usually easy to figure out. If the buyer gets approved for a loan at that current rate, they must take it—even if the rate is higher than they expected. Buyers should be careful with this kind of agreement, especially if there's a long time between signing the contract and closing, because interest rates could go up during that period.

Another risk of using the “prevailing rate” to set the loan’s interest rate is that buyers and sellers might disagree on what that rate actually is, since mortgage rates can vary a lot. For example, a buyer might say she can’t get a loan at 5.75%, while the seller insists the current rate is 6.25%.
​
The Terms of the Loan Must Be Definite in Finance Contingencies
If a real estate sales contract includes a financing contingency, it must be clear and specific to be legally enforceable. Using “TBD” (to be determined) for an important term—like the interest rate—makes the contract unenforceable in Georgia, because it shows the parties haven’t agreed on all key terms. In that case, it’s just an agreement to agree later. However, using terms like “prevailing rate” or “market rate” is acceptable, since those can be determined and make the contract valid and enforceable.