What is an Eviction?
An eviction is basically the legal term for the process a landlord uses to retake legal possession of his/her property when the tenant either stays too long or does not pay their rent. Before a landlord can evict a tenant, they must provide the tenant with proper notice. There are typically three different types of eviction notices that are commonly used. They are:
- Pay or Quit Notice - This type of notice is typically given when a tenant has not paid the required rent. The landlord uses this notice to let the tenant know that if they do not pay their rent, they will have to leave.
- Cure or Quit Notice – This type of notice is usually given when the tenant has violated a term of their lease (aside from not paying their rent). The notice is used to warn the tenant to cure the violation or else they will have to leave.
- Unconditional Quit – This type of notice is given to order a tenant to move out within a certain period of time. The tenant is not given the opportunity to cure any problems.
Once proper notice has been given and the tenant has not complied with the landlord’s request to cure the problem, an eviction or what is legally known as a “dispossessory” lawsuit may be filed.
What Type of Evictions Can I File?
A landlord who is faced with a tenant who is not paying his/her rent has three basic remedies. These are 1) Dispossession, 2) Distress and 3) a Suit for Rent. Each of these remedies is discussed in detail in their own sections below.
How Do I Get Them Out of My Property (Dispossessory Proceeding)?
A dispossessory proceeding is the proceeding a landlord undertakes to remove a tenant and his property from the rented premises. It’s important to follow the strict rules that define this type of proceeding. These rules are laid out in the Georgia statutes. There are three different situations in which a dispossessory proceeding will be warranted. These are 1) A tenant is holding over and beyond their term, 2) A tenant fails to pay their rent when it is due, and 3) The owner desires possession of the premises held by a tenant at will or a tenant at sufferance.
Can’t I Just Change The Locks?
No, you can not resort to self-help evictions in Georgia. In fact, in Georgia, self-help evictions by landlords without following the strict rules for a dispossessory proceeding are considered to be actionable torts. What this means is that if you resort to a self-help eviction (e.g., change the locks), your tenant may have the right to sue you in a court of law!
If The Tenant Has Abandoned The Property, Do I Need A Dispossessory Proceeding ?
If your tenant has actually abandoned your property, then a dispossessory proceeding may not be required to regain possession. However, this can become very tricky because to have ACTUALLY ABANDONED the property, there must be non-use by the tenant coupled with an intention to relinquish all rights in the property. Since it’s impossible for landlords to know the intentions of their tenants, this is often an area where landlords get in trouble. Thus it’s always safer to have a dispossessory proceeding if feasible.
My Tenant Has Abandoned The Property, But They Left All Their Stuff
If your tenant has actually abandoned your property, but has left all of their stuff inside, it’s often tempting to just throw the items away. However, a landlord faced with this situation can never be certain that the tenant will not come back at a later date and demand that their property be returned to them. In cases like this, it’s prudent to handle such property very carefully. We usually recommend that the landlord take photographs of all of the property and create a detailed list of the property, carefully denoting each item’s condition. After this is done, have somebody who would make a good witness oversee the removal of the property from the premises. While disposing of the property would seem to be the most efficient approach at this point, it may be better to store the property in a safe place and send a letter to the tenant letting them know that if the property is not redeemed by a specific date, it will be disposed of. Following these procedures should protect you from liability in situations like these.
How Does The Eviction Process Take Place?
In order to begin the dispossessory eviction process, certain formal rules must be followed very carefully in GA. Some of the steps required are:
1. The landlord must demand possession of the property and the tenant must refuse before a dispossessory process can begin.
2. The landlord or his attorney must then write an affidavit that serves as an oath of the facts.
3. When the affidavit is made, the judge of the superior court, state court or any other court with jurisdiction over the property will issue a summons to the local sheriff’s office.
4. The affidavit and summons are then served upon the tenant commanding him to answer either verbally or in writing within seven days from the date of service.
If the summons is not answered within the seven day time limit, the landlord will be granted a writ of possession and will legally be allowed to take possession of the property. Furthermore, the landlord will probably be granted a default judgment for any outstanding rent claimed in the affidavit as if it were proven.
If the tenant does answer in time, then the matter will be scheduled for a court date in front of a judge.
Finally, if rather than answering the summons, the tenant pays all past due rent to the landlord (assuming the dispossessory was based on lack of rental payment), then that constitutes a complete defense and the dispossessory will be dismissed.
My Tenant Still Owes Me Money. Can I Take His Property (Distress Proceeding)?
In many cases, tenants owe their landlords rent and do not have the cash or simply refuse to pay. The remedy for this type of situation is called a distress hearing. This type of hearing allows the landlord to place a lien on the leviable property of his tenant and to eventually have the property sold to pay the tenant’s debts.
This type of remedy was used much more prior to 1975. In 1975, the statute was changed to force landlords to give tenants notice and a hearing before the tenant lost his property. While this proved to be more equitable, it also gave tenants the ability to conceal or remove their property before they lose it. For this reason, many landlords have resorted to using suits for rent (see next section).
This being said, a distress proceeding may still be a viable option for many landlords today depending on the circumstances. The Burris Law Firm can help you decide if a distress proceeding is the right step for you.
I Want My Tenant To Pay, But I Don’t Want To Kick Them Out (Suit For Rent)
In some circumstances, it’s wise for a landlord to attempt to collect delinquent rental payments while opting not to evict the tenant and take possession of the property. This option is what is known as a suit for rent.
While a dispossessory proceeding is effective for regaining possession of the property, remember that it effectively terminates the lease and all resulting future rent obligations. If the landlord wishes to keep the tenant in possession because the tenant has many assets or because it will be difficult to re-lease the property, then a suit for rent is a good solution.
Finally, if the tenant has already vacated the premises, then a distress proceeding will not be available and a suit for rent may be the only way to collect back rent.
Services Burris Law Offers
The Burris Law Firm, we focus on the area of Landlord-Tenant Law. We can help you get rid of your problem tenant. Stop stressing over the issue and call us today at (404)987-0111. We can file for dispossessory proceedings, distress proceedings or suits for rent. While the complexity of each case may differ, our pricing is always very reasonable and in many cases we can help you collect many times our fees back from your problem tenants. Your first in-office consultation with us is always free. Call us today!
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