Disclaimer: I am not a lawyer. This article explains general information about Georgia law and common outcomes when a co-owner of inherited property takes out a home equity loan or refinances without the other owner’s approval. This is not legal advice. For guidance tailored to your situation, talk to a Georgia real estate or probate attorney.
Detailed answer — what typically happens under Georgia law
When you inherit property with another person, Georgia law typically creates a co-ownership interest. Unless the deed or will specifically says otherwise, co-owners usually hold the property as tenants in common. Each co-owner owns an undivided share of the whole property and may deal with their own share.
Can a co-tenant take out a loan or refinance without the other co-owner’s consent?
Short answer: a co-tenant can sign a mortgage or refinance document using only their own signature, but that mortgage generally only reaches (encumbers) the interest that person actually owns. A lender normally wants signatures from all title holders before lending against the entire property; if the other co-owner did not sign, the lender’s security interest is limited to the signing co-owner’s undivided interest.
Why this matters: if only one co-owner signs, the lender cannot — by that mortgage alone — create a valid lien on the other co-owner’s undivided interest. However, if the lender records the mortgage and later forecloses on the mortgaged interest (or the borrower defaults), the result can still be serious: the foreclosure sale can transfer the mortgaged co-owner’s interest to the purchaser, and a purchaser of that interest may then seek to force a partition sale of the entire property.
Possible outcomes
- Mortgage recorded by a single co-owner: The mortgage is valid as to that co-owner’s share. It creates a cloud on title, which can complicate sale or refinancing of the property later.
- Foreclosure against just one co-owner’s interest: The purchaser at foreclosure acquires only that co-owner’s interest. But that new owner may then seek a partition sale and could force sale of the whole property to realize the value.
- If the co-owner obtained the loan by fraud, forgery, or misrepresentation: You can challenge the loan, seek to have documents set aside, and recover damages. These are grounds for suing and asking a court to cancel the improperly recorded instrument.
- If the lender obtained signed documents from all owners: The lender’s mortgage likely encumbers the entire property. A default could expose the whole property to foreclosure.
Where Georgia statutes and court process fit in
Georgia law governs property rights, mortgages, recording, and partition actions. Relevant subject areas appear in Georgia’s property law and probate code (see Georgia Code, Title 44 — Property, and Title 53 — Wills, Estates, and Fiduciary). Those statutes set rules on recording instruments, lien priority, and procedures for partition and foreclosure. You can review the state code for details at these official pages:
- Georgia Code — Title 44 (Property): https://www.legis.ga.gov/ga-code/title/44
- Georgia Code — Title 53 (Wills and Estates): https://www.legis.ga.gov/ga-code/title/53
Note: Specific remedies and deadlines can depend on the facts (how title is held, whether the co-tenant signed as executor, whether the property was probated, recorded instruments, and whether any fraud occurred).
Common legal remedies a non-consenting co-owner can pursue
- Quiet title or declaratory judgment — ask a court to clear the title and declare that a mortgage did not encumber your undivided interest (or to remove a fraudulent document).
- Injunction or lis pendens — seek a court order to stop a foreclosure or transfer while you litigate rights; filing a lis pendens can protect your claim by notifying prospective buyers of a pending dispute.
- Partition action — ask the court to divide the property physically or sell it and split proceeds. A purchaser of a mortgaged co-owner’s interest can also seek partition.
- Fraud/void instruments — if the co-owner forged your signature or lied to get the loan, you can sue to void the instrument and for damages; criminal fraud may also apply.
- Negotiate or buy out — sometimes the fastest solution is to negotiate a buyout of the other owner’s interest or refinance the debt on better terms with all owners signing.
Practical steps to take right now
- Get a copy of the deed and run a title search (or ask a real estate attorney or title company to do it). Confirm how the title is held and whether the mortgage or deed is recorded.
- Request copies of any loan or mortgage documents from the county recorder or the lender. Review who signed and what interest was pledged.
- If you see a recorded mortgage and you did not sign, contact a Georgia real estate or probate attorney promptly — there may be short deadlines to challenge recordings or to file for injunctive relief.
- Preserve evidence: save communications, texts, emails, and any documents from the co-owner about the loan or refinance.
- Consider sending a written demand or cease-and-desist (through counsel) if you suspect fraud. Don’t confront aggressively in a way that harms your position — consult counsel first.
- If foreclosure notices arrive, act immediately. Missing deadlines can limit your remedies.
When to call an attorney
Talk to a Georgia attorney if you learn a co-owner refinanced or encumbered the property and you did not consent — especially if the instrument is recorded, a foreclosure is threatened, or you suspect forgery/fraud. A lawyer can explain how Georgia statutes apply to your title, help you file the right court papers (injunction, lis pendens, quiet title, partition), and advise whether negotiation, buyout, or litigation is best for your goals.
Helpful hints
- Don’t assume a recorded mortgage automatically gives the lender full rights to the entire property — check who signed and whose interest was mortgaged.
- Act quickly. Title disputes and foreclosure timelines can move fast in Georgia.
- Get a title report early — it reveals recorded liens and who signed what documents.
- Keep clear records of inheritance documents (will, probate orders, deeds) showing how title passed to you and the co-owners.
- If you plan to stay in the property, weigh whether buying out the other owner or refinancing jointly is cheaper than litigation.
- If you think fraud occurred (forgery, misstatements to a lender), preserve all evidence and report it to counsel — this can be both a civil and criminal matter.
- Consult an attorney licensed in Georgia who handles real estate and probate matters — they can file immediate protective motions if needed.
For official Georgia statutes on property, recorded instruments, mortgage foreclosure, and partition procedures, see Georgia Code Title 44 (Property) and Title 53 (Wills and Estates) at the links above. Because facts change outcomes, legal advice specific to your situation is important.