EVICTIONS AND DISPOSSESSIONS

 

My tenant has not been seen for several weeks; rent is paid. Can I consider the property abandoned?

A landlord must be cautious in declaring rental property abandoned and taking possession. If a landlord mistakenly declares property abandoned and removes the tenant's property, the landlord may be held liable for the property the tenant lost. While the tenant's property may not seem valuable to you, the tenant may consider it to be very valuable and could sue you to recover. It is best for a landlord not to consider property abandoned while rent is paid. Once rent is past due it is best for the landlord to file a dispossessory affidavit and obtain a court order for possession of the property. This will protect the landlord from liability.

 

When can a landlord begin legal proceedings to evict a tenant?

The basis for evicting a tenant are:

 

What must a landlord do to evict a tenant?

Before contacting the court to initiate eviction proceedings, the landlord should read the lease and be familiar with its provisions and comply with its terms regarding notice and termination. Once the terms of the lease have been followed, Georgia law requires a landlord to go through court to remove a tenant.

First, before going to court, the landlord must demand that the tenant immediately give up possession and vacate. This demand is best made in writing. If the tenant refuses or fails to give up possession, the landlord or the landlord's agent or attorney must go to the magistrate court and file a dispossessory affidavit under oath. The affidavit states:

The magistrate court will issue a summons to the sheriff where the property is located. There are three ways in which the summons can be served:

The summons requires the tenant to answer either orally or in writing within seven (7) days from the date that the summons is served. If the seventh day is a Saturday, Sunday, or a legal holiday, the answer is required the next day that is not a Saturday, Sunday, or a legal holiday. The summons should indicate the last day to file an answer and the court in which the answer should be filed.

If the tenant fails to respond at the end of the seventh day, as listed on the summons, the lawsuit is in default. The court can then grant the landlord a writ of possession and the sheriff can remove the tenant immediately.

If the tenant answers the summons, a trial of the issues will be held in accordance with the procedures of the appropriate court. The tenant is allowed to remain in possession of the premises. The landlord may request that the court order the tenant to pay rent into the registry of the court. If payment is ordered, non-payment of rent into the registry could result in the court issuing a writ of possession and the tenant becoming subject to eviction.

Once an answer has been filed, and a hearing has been held, the court will issue its decision. If the court rules for the landlord, the tenant will be ordered to move after ten days and may be ordered to pay the past due rent. After July 1, 1998, a tenant has only seven (7) days to move.

If the dispossessory warrant was served by tack and mail, and the tenant did not file an answer, the court may not award rent or other damages to the landlord. The court can still order the tenant to move.

 

Today I received a dispossessory affidavit because I failed to pay my rent the first of the month. I now have money to pay my rent. What can I do?

A tenant whose landlord has filed a dispossessory affidavit because of non-payment of rent may be able to avoid being evicted by paying all that the landlord alleges is due plus court costs. This amount should be stated on the dispossessory summons served on the tenant. The tenant must offer payment within seven (7) days of receiving the summons. The landlord is required to accept such payment from the tenant only once in a twelve month period.

If a landlord refuses to accept an offer of tender, the tenant should file an answer to the dispossessory affidavit stating that tender was offered, but refused. After July 1, 1998, if a court finds that a landlord refused a proper tender, the court can order the landlord to accept payment of rent, late fees and court costs and require that the landlord allow the tenant to remain in possession, if the payment is made withing three days of the court's order. If the court finds that the landlord refused a proper tender and orders the landlord to accept payment, that payment will not count as use of the tender defense which can only be used once every twelve months.

 

My tenant failed to pay rent so I filed a dispossessory warrant. I filed in the middle of the month and the hearing will not be held until the middle of next month. Rent is due on the first of the month. Can I accept rent while I wait on the dispossessory hearing?

No, where a landlord has filed a dispossessory affidavit based on non-payment of rent, the landlord cannot accept rent from the tenant. After the dispossessory affidavit has been filed, the landlord can request that the court order the tenant to pay rent into court.

 

I terminated my tenant's lease effective the 15th of October. It is now November 1st, the tenant has not moved. I have not filed a dispossessory warrant but intend to. Can I accept the rent due November 1st?

No, if you accept rent now, after the existing tenancy has terminated but before filing a dispossessory warrant, you will create a new tenancy which would need to be terminated before you file a dispossessory affidavit. The new tenancy created would be a tenancy-at-will and would require sixty (60) days notice to terminate. If you had already filed a dispossessory affidavit, you could accept payment of rent as it came due. This does not apply where a landlord seeks to evict for non-payment of rent.

 

I do not have the money to pay my rent. My landlord says my furniture will be placed on the street if I don't pay the rent by the due date. Can my landlord do this?

No, the landlord cannot personally put your possessions on the street without a court order. A dispossessory proceeding can be initiated by the landlord which could result in your being evicted. A sheriff, marshall, or constable may then remove your property from the premises if a court has ordered that they may do so.

 

My landlord removed all my possessions and changed the locks on the apartment. He did not give me any warning or go through the courts to evict me. What recourse do I have?

Self help evictions, including changing the locks, are illegal under Georgia Landlord Tenant law. You may take action against the landlord for any damages you suffer due to his wrongful conduct. It is best that this type of action be pursued with the assistance of a legal representative. If you can not obtain an attorney, you can file a claim in the magistrate court of the county where the landlord is located.

 

My tenants have not paid rent in several months. Can I turn off their utilities?

No. A landlord who wants to force tenants to move must go through court and follow the dispossessory process. A landlord who suspends a tenant's utility service prior to the final judgment in a dispossessory action has broken the law and may be subject to a fine up to $500.

I have been served with a dispossessory warrant. It states that I can file an answer. What is an answer?

An answer is your response to your landlord's dispossessory warrant. It can be written or you can tell your response to the court clerk and have it written for you. The answer is your opportunity to state why you do not feel your landlord is legally entitled to have you evicted. If your landlord is seeking to evict you alleging that you violated your lease, your answer should state why you believe that you did not violate the lease. If an answer is filed, the court will schedule a hearing in which the tenant and landlord can each present their case. Anyone who knowingly and willingly makes a false statement in an answer could be found guilty of a misdemeanor.

 

My tenant filed an answer to a dispossessory warrant which I filed because she did not pay the rent. I use the rent money to pay the mortgage on the rental property. What can I do to collect rent while waiting for a court decision?

The tenant is allowed to remain in the rental property until the dispossessory process is complete. A landlord can request that the court order the tenant to pay into court the rent and utility payments that become due, while the dispossessory process is pending. The amount of rent due can be shown by attaching a copy of the lease or evidence of past payments. The court will order the tenant to make payments into court which can then be distributed to the landlord. If the tenant fails to make payments, the court can order the tenant to be removed from the property.

 

My tenant was served with the dispossessory warrant by tack and mail service. The tenant did not file an answer. The court says that it can issue an order to have the tenant removed but it could not issue a judgment stating that the tenant owes me money for past due rent. Why?

A dispossessory warrant taken due to non-payment will usually request possession and a judgment for the amount of rent owed. If the dispossessory warrant is served by "tack and mail" service, a copy being placed on the door and a second copy sent by mail, the court cannot issue a money judgment. However, if the tenant served by tack and mail files an answer, the court can award a money judgment.

 

The court ruled in favor of my tenant in our dispossessory case. I disagree. What can I do?

After July 1, 1998, a judgment in a dispossessory case must be appealed within seven (7) days from the date the judgment is entered by the court. Once appealed, the case will be placed on the court's next calendar for a non-jury hearing. If a jury trial is desired it must be requested within thirty (30) days from the filing of the appeal. It is wise to consult an attorney when considering an appeal. Until July 1, 1998, a appeal must be filed within ten (10) days.

 

The court ruled for my landlord at our dispossessory hearing. How long do I have to move?

By ruling for your landlord, the court ruled that your landlord did have the legal right to have you removed from the property. The court may also have entered a judgment that you owe money to your landlord. The money judgment can be enforced by garnishment or other methods. A writ of possession allows the landlord to have you removed from the property. After July 1, 1998, your landlord cannot execute the writ, remove you from the property, until the expiration of the seventh (7th) day after the judgment was entered or longer if the court orders. Once judgment has been entered, even if you pay the landlord the money judgment, you can still be removed from the property. Until July 1, 1998, a tenant has ten (10) days after judgment to vacate.

 

I disagree with the court's judgment that I owe my landlord money and that I have to move. What can I do?

After July 1, 1998, you have seven (7) days to file an appeal from the trial court. If the landlord requests, the court may order the tenant to pay into court the rent the trial court found the tenant owed, as well as future rent which comes due while the appeal is pending. If the tenant fails to pay, the court will order that the tenant to be removed from the property. Prior to July 1, 1998, a tenant has ten (10) days to appeal.