§ 11-9-334. Priority of Security Interests in Fixtures and Crops

1. Security interest in fixtures under this article.    A security interest under this article may be created in goods that are fixtures or may continue in goods that become fixtures. A security interest does not exist under this article in ordinary building materials incorporated into an improvement on land.
2. Security interest in fixtures under real property law.    This article does not prevent creation of an encumbrance upon fixtures under real property law.
3. General rule; subordination of security interest in fixtures.    In cases not governed by subsections (d) through (h) of this Code section, a security interest in fixtures is subordinate to a conflicting interest of an encumbrancer or owner of the related real property other than the debtor.
4. Fixtures purchase money priority.    Except as otherwise provided in subsection (h) of this Code section, a perfected security interest in fixtures has priority over a conflicting interest of an encumbrancer or owner of the real property if the debtor has an interest of record in or is in possession of the real property and:
   1. The security interest is a purchase money security interest;
   2. The interest of the encumbrancer or owner arises before the goods become fixtures; and
   3. The security interest is perfected by a fixture filing before the goods become fixtures or within 20 days thereafter.
5. Priority of security interest in fixtures over interests in real property.    A perfected security interest in fixtures has priority over a conflicting interest of an encumbrancer or owner of the real property if:
   1. The debtor has an interest of record in the real property or is in possession of the real property and the security interest:
      1. Is perfected by a fixture filing before the interest of the encumbrancer or owner is of record; and
      2. Has priority over any conflicting interest of a predecessor in title of the encumbrancer or owner;
   2. Before the goods become fixtures, the security interest is perfected by any method permitted by this article and the fixtures are readily removable:
      1. Factory or office machines;
      2. Equipment that is not primarily used or leased for use in the operation of the real property; or
      3. Replacements of domestic appliances that are consumer goods; or
   3. The conflicting interest is a lien on the real property obtained by legal or equitable proceedings after the security interest was perfected by any method permitted by this article.
6. Priority based on consent, disclaimer, or right to remove.    A security interest in fixtures, whether or not perfected, has priority over a conflicting interest of an encumbrancer or owner of the real property if:
   1. The encumbrancer or owner has, in an authenticated record, consented to the security interest or disclaimed an interest in the goods as fixtures; or
   2. The debtor has a right to remove the goods as against the encumbrancer or owner.
7. Continuation of subsection (f) of this Code section priority.    The priority of the security interest under paragraph (2) of subsection (f) of this Code section continues for a reasonable time if the debtor’s right to remove the goods as against the encumbrancer or owner terminates.
8. Priority of construction mortgage.    A mortgage is a construction mortgage to the extent that it secures an obligation incurred for the construction of an improvement on land, including the acquisition cost of the land, if a recorded record of the mortgage so indicates. Except as otherwise provided in subsections (e) and (f) of this Code section, a security interest in fixtures is subordinate to a construction mortgage if a record of the mortgage is recorded before the goods become fixtures and the goods become fixtures before the completion of the construction. A mortgage has this priority to the same extent as a construction mortgage to the extent that it is given to refinance a construction mortgage.
9. Priority of security interest in crops.    A perfected security interest in or agricultural lien upon crops growing on real property has priority over a conflicting interest of an encumbrancer or owner of the real property if the debtor has an interest of record in or is in possession of the real property.

History. Code 1981, § 11-9-334 , enacted by Ga. L. 2001, p. 362, § 1.

Law reviews.

For article discussing U.C.C. provisions establishing a security interest in fixtures as a means of protecting sellers, see 16 Mercer L. Rev. 404 (1965).

For article, “The Revisions to Article IX of the Uniform Commercial Code,” see 15 Ga. St. B.J. 120 (1977).

For article surveying recent judicial developments in commercial law, see 31 Mercer L. Rev. 13 (1979).

For article, “Fixture Financing Under Georgia’s New Article 9” (Part 1), see 16 Ga. St. B.J. 110 (1980).

For article, “Fixture Financing Under Georgia’s New Article 9” (Part 2), see 16 Ga. St. B.J. 160 (1980).

For note, “Limits on Residential Mortgage Lender Protection Section 1322(b) of the Bankruptcy Code,” see 9 Ga. St. U.L. Rev 647 (1993).