§ 58-268. Recordation of transfer of development rights transactions (sending areas).

(a)

Deed of transfer. A deed of transfer shall be required to convey development rights from a sending parcel to a purchaser. The deed shall be valid only if it is signed by the owner or authorized representative of the sending parcel, complies with all legal requirements for the transfer of real estate, contains provisions established by the department and is recorded in the chain of title after the conservation easement is secured against the sending parcel.

A deed of transfer shall contain a metes and bounds written legal description and a plat prepare by a licensed surveyor, the names and addresses of the grantor and the grantee of the development rights, the serial numbers of the TDRs being conveyed along with a copy of the TDR certificate issued by the department and proof of the execution and recordation of a conservation easement on the sending parcel.

(b)

Conservation easement. To convey the certified development rights on a sending area, a conservation easement between the owner of the sending area and an organization authorized by the laws of the State of Georgia to accept, hold and administer conservation easements, pursuant to O.C.G.A. § 44-10-1 Georgia Uniform Conservation Easement Act must be signed and recorded with the Fulton County Clerk, prior to the deed of transfer. Conservation easements established pursuant to this section may not be released or nullified by any party.

The department may develop a model conservation easement form and require it be used to fulfill the requirements of this section.

In addition to the provisions of the Georgia Uniform Conservation Easement Act, each conservation easement shall contain:

(1)

A metes and bounds written legal description and plat prepared by a licensed surveyor;

(2)

Prohibitions against the use and development of the sending area property which are inconsistent with open space as defined in section 58-261(d);

(3)

Assurances that prohibitions will run with the land and bind the landowner and every successor in interest to include a statement that the easement shall survive any merger of the easement interest and the fee simple interest of the property;

(4)

The serial numbers of the TDRs being transferred in the deed of transfer from the sending area property subject to the conservation easement; and

(5)

A statement that nothing in the easement shall be construed to convey to the public a right of access or use of the property and that the owner of the property, his heirs, successors and assignees will retain exclusive right to such access or use subject to the terms of the easement.

(c)

Sufficiency of documents. Prior to the recordation of the deed of transfer and the conservation easement, parties to the transaction must obtain an opinion from a licensed Georgia attorney that the deed and easement have been executed by all necessary parties and is perpetual and binding on the property owner and every successor in interest. A copy of this document shall be provided to Fulton County.

(d)

Re-issuance of TDR certificates. In the event of the transfer of fewer than all of a landowner's development rights, the landowner must return the original TDR certificate to the department upon the recordation of the conservation easement and deed of transfer. The landowner must provide a copy of the deed of transfer that contains the serial numbers of the development rights transferred.

Within 95 days of the receipt of the complete TDR certificate, the department shall reissue a certificate to the landowner reflecting the remaining TDRs and the corresponding serial numbers.

(Res. No. 07-0912, 4-2-08)