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Frequently Asked
Questions: Georgia Landlord Tenant Law
What is a Dispossessory
Action?
Can the tenants Stay if
they don't pay the rent?
In which court may a
dispossessory action be filed?
Is there any difference
concerning whether the landlord files in Magistrate or State Court?
Can I represent myself
or my company "pro se"?
Do I need to hire an
attorney to do the dispossession for me?
What does an attorney
cost?
Suppose I only have an
oral agreement or an oral lease with my tenant, may I still file suit?
What must occur before a
landlord may file to dispossess a tenant?
Must the tenant be given
notice before a dispossessory is filed?
How and where is the
dispossessory action filed?
Do I have to swear (or
affirm) to the facts on the Petition?
What can a landlord sue
for in the Dispossessory Action?
Does the tenant need to
be served by the Sheriff?
What must the tenant do
after he or she is served?
Suppose the tenant files
an answer after the seven (7) day period, may the landlord get a Writ by default?
Can a tenant file an
Answer and not pay the Rent?
Can a tenant defeat a
landlord's suit by payment?
How long does it take to
get to trial?
What happens at trial?
Can the tenant get a
"jury trial?"
What is a "Writ of
Possession?"
Will the Sheriff evict
the tenant when I get a "Writ of Possession?"
Why is the tenant always
given ten (10) days after the court appearance to vacate the premises?
May a tenant (and/or a
landlord) Appeal?
What duties are owed by
landlords to tenants in Georgia?
When must a Lease be in
Writing?
Is a landlord always
required to make repairs?
Can a tenant withhold
rent and force a landlord to make repairs?
Suppose the roof falls
in, does the tenant have to pay the rent?
Who pays if someone is
hurt on the premises?
Does the landlord need
to keep the house or apartment in compliance with the City and County ordinances, even
though the tenant is in possession of the unit?
Can the landlord get
attorney's fees associated with the dispossessory action?
Does the landlord have
to put a tenant's security deposit in an identified escrow account?
What does a tenant have
to do to get a security deposit refunded?
Can a tenant recover
money damages against the landlord for failure to escrow the security deposit?
Do I have to renew my
lease with my tenant?
My tenant lives in a
mobile home. What can I do?
Miscellaneous Information
1.
What is a Dispossessory Action?
A
tenant eviction is a summary proceeding provided for under Georgia law that is generally
governed by Chapter 44, Article 7 of the O.C.G.A.
O.C.G.A.
Section 44-7-50. Demand for possession; procedure upon a tenants refusal; concurrent
issuance of federal lease termination notice.
(a) In all cases where a tenant holds possession of lands or tenements over and
beyond the term for which they were rented or leased to the tenant or fails to pay the
rent when it becomes due and in all cases where lands or tenements are held and occupied
by any tenant at will or sufferance, whether under contract of rent or not, when the owner
of the lands or tenements desires possession of the lands or tenements, the owner may,
individually or by an agent, attorney in fact, or attorney at law, demand the possession
of the property so rented, leased, held, or occupied. If the tenant refuses or fails to
deliver possession when so demanded, the owner or the agent, attorney at law, or attorney
in fact of the owner may go before the judge of the superior court, the judge of the state
court, or the clerk or deputy clerk of either court, or the judge or the clerk or deputy
clerk of any other court with jurisdiction over the subject matter, or a magistrate in the
district where the land lies and make an affidavit under oath to the facts. The affidavit
may likewise be made before a notary public, subject to the same requirements for judicial
approval specified in Code Section 18-4-61, relating to garnishment affidavits.
(b) If issued by a public housing authority, the demand for possession required
by subsection (a) of this Code section may be provided concurrently with the federally
required notice of lease termination in a separate writing.
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2.
Can the tenants stay if they don't pay the rent?
No.
O.C.G.A. Section 44-7-50 is a lengthy way of saying, "if you can't pay, you can't
say." If the tenant does not pay rent or holds beyond the lease term, the landlord
may bring an action to evict the tenant. However, this is not a perfect world. Gazillions
of tenants frequently stay rent free until the landlord figures out he or she has a
problem and brings the system to bear upon the tenant. Even then, the tenants will stay
rent free until the eve of the execution of the Writ of Possession.
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3. In which court may a dispossessory action be filed?
A
landlord may file a dispossessory action in either Magistrate or State Court in the county
where the house or apartment is located. The great bulk of the filings occur in Magistrate
Court, however some counties, like Cobb and Dekalb, conduct the bulk of dispossessories in
State Court.
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4.
Is there any difference concerning whether the landlord files in Magistrate
or State Court?
Maybe.
In the absence of a dispute and with rent at issue less than $15,000, there is no
noticeable difference. Magistrate Court jurisdiction ends at $15,000. (Magistrate Court
Jurisdiction used to be $5,000) State Court has unlimited dollar jurisdiction in
civil cases. If the tenant, or landlord, suffers an adverse judgment in Magistrate Court,
the tenant or landlord may seek an appeal "de novo," to the State Court (in
counties with no State Court, then to the Superior Court). The judgment in Magistrate
Court is set aside and the dispossessory action begins again.
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5.
Can I represent myself or my company "Pro Se?"
After
a case called Eckles v. Atlanta Technology, 267 Ga. 801, 485 S.E.2d 22 (1997),
non-attorneys may no longer file or appear for landlords in State Court. Any landlord,
officer of a corporation or designated agent may file and appear in Magistrate Court for a
landlord. Only a licensed attorney may file and appear in State and Superior Court for an
incorporated landlord. Individual landlords may represent themselves at any stage of the
proceedings.
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6. Do I need to hire an attorney to do the dispossession for me?
It
depends. If you believe that the tenants will not present a legal battle and will depart
the premises after you "file," then a "pro se" (assuming you are not a
corporation) filing in Magistrate Court will accomplish your purposes. You do not need an
attorney. It is almost always more profitable in the long run to reach an agreement
concerning the amount of rent owed with the tenant and get them to move out! The longer a
landlord is without possession of the unit, the more costly the loss becomes.
In
the following scenarios, you should seriously consider hiring an attorney: 1) tenant files
a lengthy counterclaim; 2) tenant pays the rent money into the registry of the court at
the time he or she answers; 3) tenant claims that he or she is a "purchaser"
under a lease-purchase agreement (this can lead to a serious delay in eviction) 4) tenant
files a pleading that demands a "jury trial;" (this may present a very serious
delay for landlord!) 5) tenant files an appeal from Magistrate to State Court; 6) tenant
files an appeal from State Court to the Georgia Court of Appeals ("pro se"
tenants almost always botch the Petition to the Georgia Court of Appeals).
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7.
What does an attorney cost?
Attorneys
set their own rates. We generally only become involved in a dispossessory when a real
problem exists, i.e., tenant has already informed landlord tenant will fight the eviction
-- commercial evictions, etc.. Our fee to handle the matter in Court runs at $200 per
hour. Unlike some firms, we decline to represent clients on a flat rate. We
require a Retainer; jury trials are by the hour. Expenses associated with the eviction can
be significant, however, they are generally only incurred if the landlord must put the
tenants on the street by force. We charge $200 per hour for matters taken on appeal.
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8.
Suppose I only have an oral agreement or oral lease with my tenant, may I
still file?
Yes.
As a landlord your problems with regard to proof are more difficult, you have no written
lease that will assist you in the proof of the terms of the rental agreement.
Pragmatically, the best evidence tends to be a string of rental checks paid by the tenant
and accepted by the landlord as proof of the rental and the amount.
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9.
What must occur before a landlord may file to dispossess a tenant?
There
must be a landlord - tenant relationship. If the person living in the house or apartment
is not a "tenant," the action will may not be legally maintained. For example,
individuals who are buying a house on a "Lease - Purchase," arraignment may or
may not be tenants. They may be owners. If the "tenant" is in fact an
"owner," then the dispossessory must stand dismissed. This defense is often
raised, but frequently unsuccessful.
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10.
Must the tenant be given notice before a dispossessory is filed?
Yes.
There must be some reason to file -- either the rent is due and unpaid, the tenant is
holding over beyond the lease or the tenant is clear breach of a major covenant in the
lease. Once there is a "breach," then the tenant must be given a "notice to
quit." In Georgia the "notice to quit" may be oral or in writing. It must
be given before the action for dispossession is filed. Technically, Georgia law appears to
have no specific time that must elapse prior to filing. Many tenants will cite the "3
day notice to quit," however, that appears to be good law in California not Georgia.
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11.
How and where is the Dispossessory action filed?
The
action is filed by filling out the Dispossessory Forms in either the Magistrate Court or
State Court Clerk's Office. (An action may be filed in the Superior Court, but almost no
filings are initiated in Superior Court.) The filing fees and Sheriff's service fees vary
from county to county, however, they never more than $100, combined, in any of Georgia's
159 counties.
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12.
Do I have to swear to the facts on the Petition?
The
initial pleadings must be sworn (or affirmed) to under oath either by the landlord, the
landlord's agent or an attorney. False swearing is a misdemeanor.
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13. What can a landlord sue for in the Dispossessory Action?
A
landlord may sue for unpaid rent, interest, damages to the property, and, if the lease is
properly drafted, attorney's fees (usually capped at about 15% of the unpaid rent.)
Because dispossessory is a summary proceeding, no other collateral issue may be joined
with a dispossessory action. For example, suppose the tenant damaged the landlord's car and
will not move out. The landlord may not sue for damages to his car committed by the tenant
along with the suit for eviction; only issues directly related to rent, the house
or apartment and damage thereto may be joined in the dispossessory action.
O.C.G.A.
Section 44-7-51 Issuance of summons; service; time for answer; defenses and counterclaims.
(a) When the affidavit provided for in Code Section 44-7-50 is made, the judge of
the superior court, the state court, or any other court with jurisdiction over the subject
matter or the judge, clerk, or deputy clerk of the magistrate court shall grant and issue
a summons to the sheriff or his deputy or to any lawful constable of the county where the
land is located. A copy of the summons and a copy of the affidavit shall be personally
served upon the defendant. If the sheriff is unable to serve the defendant personally,
service may be had by delivering the summons and the affidavit to any person who is sui
juris residing on the premises or, if after reasonable effort no such person is found
residing on the premises, by posting a copy of the summons and the affidavit on the door
of the premises and, on the same day of such posting, by enclosing, directing, stamping,
and mailing by first-class mail a copy of the summons and the affidavit to the defendant
at his last known address, if any, and making an entry of this action on the affidavit
filed in the case.
(b) The summons served on the defendant pursuant to subsection (a) of this Code
section shall command and require the tenant to answer either orally or in writing within
seven days from the date of the actual service unless the seventh day is a Saturday, a
Sunday, or a legal holiday, in which case the answer may be made on the next day which is
not a Saturday, a Sunday, or a legal holiday. If the answer is oral, the substance thereof
shall be endorsed on the dispossessory affidavit. The answer may contain any legal or
equitable defense or counterclaim. The landlord need not appear on the date of the
tenant's response. The last possible date to answer shall be stated on the summons.
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14. Does the tenant need to be served by the Sheriff?
The
tenant must be given notice of the dispossessory action. Many times it is difficult to
serve the tenant -- then what? The Sheriff (or a private process server appointed by the
court on a special or standing motion) may "tack and mail" the front door of the
house or the apartment. Tack and Mail service will allow a landlord to obtain a "Writ
of Possession," but will not allow a landlord to obtain a money judgment for rent
owned against the tenant. If the landlord wants to obtain a money judgment for rent owned
by the tenant to the landlord, the landlord must obtain personal service on the tenant.
If a money judgment is obtained against a tenant who was not personally served, it may be
defective. A properly motivated tenant with competent legal representation should be able
to set aside such a judgment in a subsequent action.
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15. What must the tenant do after he or she is served?
Many
tenants pack up and leave the doors swinging -- end of dispossessory action. Those tenants
do not bother to file an answer. The tenant is required to file an answer, if at all,
within seven (7) days of the date the Petition is served on him or her. (Compare this time
frame with that of a standard lawsuit, there, in State or Superior court a defendant has
30 days to file an answer.)
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16. Suppose the tenant files an answer after the seven day (7)
period, may the landlord get the Writ by default?
The
law would indicate that the landlord should be able to win by default, however, lots of
judges will not grant the default without allowing tenant to be heard on the matter.
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17. Can the tenant file an Answer and not pay the Rent?
No.
If the tenant wants to fight the dispossessory, the tenant must pay the rent into
the Registry of the Court. The tenant cannot both stay and not pay.
O.C.G.A.
Section 44-7-52 When tender of payment by tenant serves as complete defense.
In an action for nonpayment of rent, the tenant shall be allowed to tender to the
landlord, within seven days of the day the tenant was served with the summons pursuant to
Code Section 44-7-51, all rents allegedly owed plus the cost of the dispossessory warrant.
Such a tender shall be a complete defense to the action; provided, however, that a
landlord is required to accept such a tender from any individual tenant after the issuance
of a dispossessory summons only once in any 12 month period.
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18. Can a tenant defeat a landlord's suit by payment?
Yes.
A tenant is allowed one dispossessory per year. If tenant pays all rent and filing fees to
landlord (or into the Registry) within seven (7) days of the service and it is the only
dispossessory that has been filed against that tenant in any twelve month period, the suit
shall stand dismissed.
O.C.G.A.
Section 44-7-54 Payment of rent and utility payments into court; issuance of writ upon
failure to pay; disposition of funds.
(a) In any case where the issue of the right of possession cannot be finally
determined within two weeks from the date of service of the copy of the summons and the
copy of the affidavit, the tenant shall be required to pay into the registry of the trial
court:
(1) All rent and utility payments which are the responsibility of the tenant
payable to the landlord under terms of the lease which become due after the issuance of
the dispossessory warrant, said rent and utility payments to be paid as such become due.
If the landlord and the tenant disagree as to the amount of rent, either or both of them
may submit to the court any written rental contract for the purpose of establishing the
amount of rent to be paid into the registry of the court. If the amount of rent is in
controversy and no written rental agreement exists between the tenant and landlord, the
court shall require the amount of rent to be a sum equal to the last previous rental
payment made by the tenant and accepted by the landlord without written objection; and
(2) All rent and utility payments which are the responsibility of the tenant
payable to the landlord under terms of the lease allegedly owed prior to the issuance of
the dispossessory warrant; provided, however, that, in lieu of such payment, the tenant
shall be allowed to submit to the court a receipt indicating that payment has been made to
the landlord. In the event that the amount of rent is in controversy, the court shall
determine the amount of rent to be paid into court in the same manner as provided in
paragraph (1) of this subsection.
(b) If the tenant should fail to make any payment as it becomes due pursuant to
paragraph (1) or (2) of subsection (a) of this Code section, the court shall issue a writ
of possession and the landlord shall be placed in full possession of the premises by the
sheriff, the deputy, or the constable.
(c) The court shall order the clerk of the court to pay to the landlord the
payments claimed under the rental contracts paid into the registry of the court as said
payments are made; provided, however, that, if the tenant claims that he is entitled to
all or any part of the funds and such claim is an issue of controversy in the litigation,
the court shall order the clerk to pay to the landlord without delay only that portion of
the funds to which the tenant has made no claim in the proceedings or may make such other
order as is appropriate under the circumstances. That part of the funds which is a matter
of controversy in the litigation shall remain in the registry of the court until a final
determination of the issues.
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19. How long does it take to get to trial?
Dispossessories
are run on a fast track. Assuming tenant does not make a jury trial demand, most cases are
to hearing within a month after tenant files an answer and some have been known to come on
for hearing the week after the answer is filed. It depends on the county.
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20. What happens at trial?
The
landlord goes first and puts on his or her case by sworn testimony, usually the lease and
checks, if any, are the only exhibits. Many times the testimony is by the apartment
manager on behalf of the landlord. If the landlord wins, the tenant is usually ordered to
vacate within ten (10) days. If the tenant wins, the case ends. For the tenant to recover
against the landlord, the tenant has to proceed with the trial of his or her counterclaim
at the same time.
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21. Can the tenant get a "jury trial?"
Yes!
Hard to believe, but true. If the tenant demands a jury trial and pays the rent into the
registry of the court, the landlord needs to be prepared to dig in for a long winter.
Sometimes a landlord may be delayed as much as eighteen (18) months by a properly filed
jury trial demand.
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22. What is a "Writ of Possession?"
The
Writ is the legal document that authorizes the Sheriff of the County to put the tenant,
and his or her belongings, on the street. The Sheriff will not do so without the signed
Writ.
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23. Will the Sheriff evict the tenant when I get a Writ of
Possession?
No.
One of great legal myths is that the Sheriff will actually evict the tenants. The Sheriff,
or Deputy, will merely show up to tap on the door and tell the tenant to
"leave," and allow you to evict the tenant. It is up to you or a hired crew to
remove the tenant's belongings and evict the tenant. In a hostile eviction, the landlord
usually changes the locks. It is up to the landlord to provide the locksmith.
44-7-55 Judgment; writ of possession; landlord's liability for wrongful conduct;
distribution of funds paid into court.
(a) If, on the trial of the case, the judgment is against the tenant, judgment
shall be entered against the tenant for all rents due and for any other claim relating to
the dispute. The court shall issue a writ of possession, both of execution for the
judgment amount and a writ to be effective at the expiration of ten days after the date
such judgment was entered, except as otherwise provided in Code Section 44-7-56.
(b) If the judgment is for the tenant, he shall be entitled to remain in the
premises and the landlord shall be liable for all foreseeable damages shown to have been
caused by his wrongful conduct. Any funds remaining in the registry of the court shall be
distributed to the parties in accordance with the judgment of the court.
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24. Why is the tenant always given ten (10) days after the court
appearance to vacate the tenancy?
Its
the law. Judgments in Georgia may not be enforced for ten (10) days after they are issued.
But, see, O.C.G.A. § 44-7-55, where the General Assembly
says it is seven (7) days. Query: Is this 7 day statute Constitutional?
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25. May a tenant (and a landlord) appeal?
Yes.
From Magistrate Court either party may take an appeal by filing an appeal in the
Magistrate Court within 7 days of the judgment. The case will then restart in State
or Superior Court (technically, it is an appeal; but, for all intents and purposes, its a
new case.) If the case originated in the State Court, an appeal may only be taken to the
Georgia Court of Appeals, if the Notice of Appeal is filed in the State Court (or Superior
Court, as the case may be) within 7 days of the judgment. Any appeal to the Georgia
Court of Appeals, if the amount of rent in dispute is less than $10,000, is by Petition
for Appeal only. It is no longer an appeal as a matter of right. If the Court of Appeals
denies the Petition for Appeal, the case is over (subject to a Petition for a Writ of
Certiorari to the Georgia Supreme Court).
O.C.G.A.
Section 44-7-56 Appeal; possession and payment of rent pending appeal.
Any
judgment by the trial court shall be appealable pursuant to Chapters 2, 3, 6, and 7 of
Title 5, provided that any such appeal shall be filed within seven days of the date such
judgment was entered and provided, further, that, after the notice of appeal is filed with
the clerk of the trial court, the clerk shall immediately notify the trial judge of the
notice of appeal and the trial judge may, within 15 days, supplement the record with
findings of fact and conclusions of law which will be considered as a part of the order of
the judge in that case. If the judgment of the trial court is against the tenant and the
tenant appeals this judgment, the court may upon motion of the landlord and upon good
cause shown order the tenant to pay into the registry of the court all sums found by the
trial court to be due for rent in order to remain in possession of the premises. The
tenant shall also be required to pay all future rent as it becomes due into the registry
of the trial court pursuant to paragraph (1) of subsection (a) of Code Section 44-7-54
until the issue has been finally determined on appeal.
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Common
Issues Raised by tenants
26. What duties are owed by landlords to tenants in Georgia?
The
duties a landlord owes a tenant in Georgia are spelled out in the Georgia Code at OCGA
Section 44-7-2. This list is not exhaustive, since may additional duties from local
ordinances, county ordinances and federal law may also apply to a particular tenancy.
However, OCGA Section 44-7-2, provides the general framework of duties landlords owe
tenants.
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27. When must a Lease be in writing?
If
the lease is for more than one (1) year it must be in writing to be enforceable.
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28.
Is a landlord always required to make repairs?
A
landlord cannot avoid the duty to make repairs. However, this generally only applies to
major repairs, heat, water, roof falling in, and does not generally apply to small
repairs, unless the repairs are contracted for in the leasing agreement.
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29.
Can a tenant withhold rent to force a landlord to make repairs?
No.
The law considers rent and repair separate issues. Absent a rental clause or contractual
agreement to the contrary, a tenant must pay the rent on time and resort to other legal
recourse to obtain repairs from the landlord. See, Borochoff Properties v.
Creative Printing Enterprises, 233 Ga. 279, 210 S.E.2d 809 (1974).
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30. Suppose the roof falls in, does the tenant have to pay the
rent?
Generally
no. If the tenancy is seriously damaged or destroyed, the duty to pay rent ends. Most
leases provide this relief. At common law, the duty to pay rent did not end, even if the
tenancy was destroyed. This harsh rule has given way to reality.
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31. Who pays if someone is hurt on the premises?
It
depends. Most landlords insure against this scenario, however, few tenants carry such
insurance. A landlord may not avoid the tort duty associated with the failure to make
repairs. For example, if the landlord has actual knowledge of a dangerous stairwell
on his or her property, the landlord may not (there are exceptions in a commercial
setting) pass the complete liability to tenant for injuries to third parties or the
tenant. Thomas v. Crownover, 259 Ga. 126, 381 S.E.2d 283 (1989). (Tenant
successfully sued landlord for serious burn injuries caused by a defective
heater. Tenant notified the landlord of the defective heater. Landlord
was cited by the City for the defective heater, yet, landlord failed to repair
same.) This is a complex issue that goes well beyond the scope of this FAQ.
O.C.G.A.
Section 44-7-14 Tort liability of landlord.
Having fully parted with possession and the right of possession, the landlord is
not responsible to third persons for damages resulting from the negligence or illegal use
of the premises by the tenant; provided, however, the landlord is responsible for damages
arising from defective construction or for damages arising from the failure to keep the
premises in repair.
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32. Does the landlord need to keep the house or apartment in
compliance with City and County ordinances, even though the tenant is in possession of the
unit?
Yes.
While it seems to make common sense, a fairly new line of cases requires Georgia landlords
to stay in compliance with local and county ordinances. tenants cannot counterclaim for
this violation as the frequently do, because it is a violation to be enforced by the
authority. However, it may provide the underpinning for a "constructive
eviction" argument.
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33. Can the landlord get attorney's fees associated with the
dispossessory action?
It
depends. If the lease states that the "prevailing party" may get attorney's fees
then the "winner" of the dispossessory action may recover attorneys fees. Many
judges usually limit the recovery to 15% of the amount of the outstanding rent and other
charges due as a cap on fees awarded. If the lease is an old lease that merely says
"landlord" may recover attorney's fees, the landlord may not recover under the
lease. There are other statutes by which attorneys fees may be awarded, O.C.G.A.
Section 9-15-14 and O.C.G.A. Section 13-6-11, however, a discussion of those
statutes is well beyond the scope of this FAQ.
44-7-2 Parol contract creating landlord and tenant relationship; certain
provisions prohibited; effect of provision for attorney's fees.
(a) Contracts creating the relationship of landlord and tenant for any time not
exceeding one year may be by parol.
(b) In any contract, lease, license agreement, or similar agreement, oral or
written, for the use or rental of real property as a dwelling place, a landlord or a
tenant may not waive, assign, transfer, or otherwise avoid any of the rights, duties, or
remedies contained in the following provisions of law:
(1) Code Section 44-7-13, relating to the duties of a landlord as to repairs and
improvements;
(2) Code Section 44-7-14, relating to the liability of a landlord for failure to
repair;
(3) Ordinances adopted pursuant to Code Section 36-61-11;
(4) Article 3 of this chapter, relating to proceedings against tenants holding
over;
(5) Article 4 of this chapter, relating to distress warrants;
(6) Article 2 of this chapter, relating to security deposits; and
(7) Any applicable provision of Chapter 11 of Title 9 which has not been
superseded by this chapter.
(c) A provision for the payment by the tenant of the attorney's fees of the
landlord upon the breach of a rental agreement by the tenant, which provision is contained
in a contract, lease, license agreement, or similar agreement, oral or written, for the
use or rental of real property as a dwelling place shall be void unless the provision also
provides for the payment by the landlord of the attorney's fees of the tenant upon the
breach of the rental agreement by the landlord.
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Security
Deposits Information
34. Does the landlord have to put a tenant's security deposit in
an identified escrow account?
It
depends. If the landlord is a commercial landlord, yes. If the landlord is an individual
who owns less than ten (10) rental units and does not hire professional manager for the
unit in question, then the answer is no.
44-7-31 Placement of security deposit in trust in escrow account; notice to
tenant of account location and number.
Except as provided in Code Section 44-7-32, whenever a security deposit is held
by a landlord or his agent on behalf of a tenant, such security deposit shall be deposited
in an escrow account established only for that purpose in any bank or lending institution
subject to regulation by this state or any agency of the United States government. The
security deposit shall be held in trust for the tenant by the landlord or his agent except
as provided in Code Section 44-7-34. tenants shall be informed in writing of the location
and account number of the escrow account required by this Code section.
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35. What does a tenant have to do to get the security deposit
refunded?
The
general rule is: not damage the apartment or house, reasonable wear and tear excepted. New
statutes require that the landlord have a move in move out form to track damages on.
44-7-34 Return of security deposit; grounds for retention of part; delivery of
statement and sum due to tenant; unclaimed deposit; court determination of disposition of
deposit.
(a) Except as otherwise provided in this article, within one month after the
termination of the residential lease or the surrender and acceptance of the premises,
whichever occurs last, a landlord shall return to the tenant the full security deposit
which was deposited with the landlord by the tenant. No security deposit shall be retained
to cover ordinary wear and tear which occurred as a result of the use of the premises for
the purposes for which the premises were intended, provided that there was no negligence,
carelessness, accident, or abuse of the premises by the tenant or members of his household
or their invitee or guests. In the event that actual cause exists for retaining any
portion of the security deposit, the landlord shall provide the tenant with a written
statement listing the exact reasons for the retention thereof. If the reason for retention
is based on damages to the premises, such damages shall be listed as provided in Code
Section 44-7-33. When the statement is delivered, it shall be accompanied by a payment of
the difference between any sum deposited and the amount retained. The landlord shall be
deemed to have complied with this Code section by mailing the statement and any payment
required to the last known address of the tenant via first class mail. If the letter
containing the payment is returned to the landlord undelivered and if the landlord is
unable to locate the tenant after reasonable effort, the payment shall become the property
of the landlord 90 days after the date the payment was mailed. Nothing in this Code
section shall preclude the landlord from retaining the security deposit for nonpayment of
rent or of fees for late payment, for abandonment of the premises, for nonpayment of
utility charges, for repair work or cleaning contracted for by the tenant with third
parties, for unpaid pet fees, or for actual damages caused by the tenant's breach,
provided the landlord attempts to mitigate the actual damages.
(b) In any court action in which there is a determination that neither the
landlord nor the tenant is entitled to all or a portion of a security deposit under this
article, the judge or the jury, as the case may be, shall determine what would be an
equitable disposition of the security deposit; and the judge shall order the security
deposit paid in accordance with such disposition.
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36. Can a tenant recover money damages against the landlord for
failure to escrow the security deposit?
Maybe.
If the landlord was required to escrow the security deposit, he or she must turn over the
security deposit on demand, regardless of the damages to the house or apartment or be
subject to a award of treble damages on the amount wrongfully withheld.
44-7-35 Remedies for landlord noncompliance with article.
(a) A landlord shall not be entitled to retain any portion of a security deposit
if the security deposit was not deposited in an escrow account in accordance with Code
Section 44-7-31 or a surety bond was not posted in accordance with Code Section 44-7-32
and if the initial and final damage lists required by Code Section 44-7-33 are not made
and provided to the tenant.
(b) The failure of a landlord to provide each of the written statements within
the time periods specified in Code Sections 44-7-33 and 44-7-34 shall work a forfeiture of
all his rights to withhold any portion of the security deposit or to bring an action
against the tenant for damages to the premises.
(c) Any landlord who fails to return any part of a security deposit which is
required to be returned to a tenant pursuant to this article shall be liable to the tenant
in the amount of three times the sum improperly withheld plus reasonable attorney's fees;
provided, however, that the landlord shall be liable only for the sum erroneously withheld
if the landlord shows by the preponderance of the evidence that the withholding was not
intentional and resulted from a bona fide error which occurred in spite of the existence
of procedures reasonably designed to avoid such errors.
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37. Do I have to renew my lease with my tenant?
No.
There is no required right of renewal in Georgia. Only if you have previously agreed to
renew by contract (which usually does not exist on the standard printed forms) may you be
required to renew the rental agreement.
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38. My tenant lives in a mobile home. What can I do?
Read
O.C.G.A. Section 44-7-59. You can tow the mobile home ten (10) days after the final
order entered by the judge and the landlord will have a lien for the moving costs against
the mobile home.
O.C.G.A.
Section 44-7-59 Removal of transportable housing from lands subject to writ of possession.
If the court issues a writ of possession to property upon which the tenant has
placed a manufactured home, mobile home, trailer, or other type of transportable housing
and the tenant does not move the same within ten days after a final order is entered, the
landlord shall be entitled to have such transportable housing moved from the property at
the expense of the tenant by a motor common carrier licensed by the Public Service
Commission for the transportation of manufactured housing. There shall be a lien upon such
transportable housing to the extent of moving fees and storage expenses in favor of the
person performing such services. Such lien may be claimed and foreclosed in the same
manner as special liens on personalty by mechanics under Code Sections 44-14-363 and
44-14-550, except that storage fees not to exceed $4.00 per day shall be expressly
allowed.
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39.
Miscellaneous
The
dispossessory statutes have been held to be constitutional under the U.S. and Georgia
constitutions. The statutes, being a derogation of common law, must be strictly construed.
That is, a landlord must cross all his or her t's and dot the i's to win, get and keep the
writ and judgment. No claim for the title to land may be maintained in dispossession, nor
may a tenant claim that the landlord does not really have title to the property.
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