Not Subject to Replevin (O.C.G.A. § 52-7-7.4)
Legal Commentary. According to Georgia boat law, a boat taken by the authorities is not subject to replevin. This means the person cannot recover the boat by saying that it was unlawfully withheld from his or her possession prior to judgment. Instead, the court is given custody of the vessel until the defendant comes to court to settle the matter. If, for example, your boat is taken because there was no visible hull identification number (HIN) and you can show that you were unaware that the HIN was removed, then the court will give back your property and pay for any related expenses that occurred during the forfeiture of the vessel, like the cost of hiring of a Georgia boat lawyer.
See the full text of the statute below:Not Subject to Replevin (O.C.G.A. § 52-7-7.4)
(a) Property subject to forfeiture under Code Section 52-7-7.3 and in the possession of any state or local law enforcement agency shall not be subject to replevin but shall be deemed to be in the custody of the superior court of the county wherein the property is located subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings.
(b) The law enforcement agency having possession of any property subject to forfeiture under Code Section 52-7-7.3 shall report such fact within ten days of taking possession to the district attorney of the judicial circuit having jurisdiction in the county where the property is located. Within 30 days from the date he or she receives such notice, the district attorney of the judicial circuit shall file in the superior court of the county in which the property is located an action for condemnation of the property. The proceedings shall be brought in the name of the state, and the action shall be verified by a duly authorized agent of the state in the manner required by law. The action shall describe the property, state its location, state its present custodian, state the name of the owner, if known, state the duly authorized agent of the state, allege the essential elements which are claimed to exist, and shall conclude with a prayer of due process to enforce the forfeiture. Upon the filing of such an action, the court shall promptly cause process to issue to the present custodian in possession of the property described in the action, commanding him or her to seize the property described in the action and to hold that property for further order of the court. A copy of the action shall be served on the owner, if known. If the owner is known, a copy of the action shall also be served upon any person having a duly recorded security interest in or lien upon that property. If the owner is unknown or resides out of the state or departs the state or cannot after due diligence be found within the state or conceals himself or herself so as to avoid service, notice of the proceedings shall be published once a week for two weeks in the newspaper in which the sheriff's advertisements are published. Such publication shall be deemed notice to any and all persons having an interest in or right affected by such proceeding and from any sale of the property resulting therefrom but shall not constitute notice to any person having a duly recorded security interest in or lien upon such property and required to be served under this Code section unless that person is unknown or resides out of the state or departs the state or cannot after due diligence be found within the state or conceals himself or herself to avoid service. At the expiration of 30 days after such filing, if no claimant has appeared to defend the action, the court shall order the disposition of the seized property as provided for in this Code section. If the owner of the vessel appears and defends the action and can show that he or she was unaware of the fact that the hull identification number had been removed, altered, defaced, falsified, or destroyed, the court shall order the property returned to the owner upon the owner's paying proper expenses relating to proceedings for forfeiture, including the expenses of the maintenance of custody, advertising, and court costs and upon the vessel being assigned a new hull identification number as provided in this article.
(c) Except as otherwise provided in this article, when property is forfeited under this article, the court may:
- Order that the vessel be retained by the law enforcement agency or the county in which the vessel is located; or
- Order that the vessel be disposed of by sale, the proceeds of which shall be used to pay the proper expenses relating to the proceedings for forfeiture, including the expenses of maintenance of custody, advertising, and court costs, with the remaining funds to be paid into the general fund of the county.
(d) Prior to the vessel being sold or returned to the owner or otherwise disposed of, the department shall assign it a new hull identification number in accordance with federal law.
HISTORY: Code 1981, § 52-7-7.4, enacted by Ga. L. 2006, p. 96, § 5/HB 1490.