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Home  Georgia Landlord/Tenant


Evictions Basics

For More In-depth Answers  See the GA Court Manual on How State Court Judges Should Handle Various Landlord Tenant Matters.

a.   A landlord cannot start eviction proceedings or demand the tenant leave until rent is past due.  

b.    Normally, the landlord or landlord's agent must first make a demand for possession before the tenant
can be evicted. 

c.   Before eviction can occur, the landlord must first obtain a dispossessory warrant.  A dispossessory warrant is a sworn statement signed by the landlord or his agent that sets forth the reason for the proposed eviction.  The landlord is also required to give the tenant a copy of this warrant, and if this is not possible, must tack the warrant on the tenant's door.  

d.   A residential landlord must always use the dispossessory process even if the lease says otherwise. See GA Law 44-7-2(b)(3).  Any landlord who evicts you without following these procedures may be guilty of trespass and subject to actual and punitive damages. Messmore v. Roth, 188 Ga.App. 862 (1988); Swift Loan and Finance Co., Inc. v. Duncan, 195 Ga.App. 556 (1990).  

e.   Once a tenant receives a warrant, the tenant has the option to answer the warrant within seven days.  ANY PORTION OF THE RENT NOT IN DISPUTE MUST BE PAID TO THE COURT WHEN THE ANSWER IS FILED. If the tenant fails to answer or does not pay the unpaid rent to the court, the court may issue an order to put the tenant out on the street.   OCGA 44-7-75(a)

f.   You cannot be evicted if you are served with a dispossessory warrant/distress warrant and you come
     up with the rent and the cost of the dispossessory warrant within 7 days of being served. See GA Law
     44-7-52, 44-7-73.  

g.  But, under 44-7-52, the landlord can evict you and refuse your late rent when this is the second time within 12 months that you have been served with such a summons. This is true even if you were short of rent by just a few dollars.  

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The Eviction Process-Being Served With Papers [iii]
In Georgia, eviction cases are called dispossessory actions.  These actions begin when the landlord files a dispossessory affidavit in court which states why the landlord should get back possession of the rented property.   

The law requires that a copy of the dispossessory affidavit be served to the tenant.  This
        gives the tenant notice of the court eviction action and time to respond to it.  

The tenant can be served in two ways:  

1. Personal Service can be affected by giving the court papers to the tenant in person or by giving such to a person of suitable age who lives with the tenant.  Usually personal service is carried out by police officials from the Marshall's or sheriff's department.  

2. Post & Mail Service involves posting a copy of the eviction notice and court papers on the tenant's house and also mailing a copy to the tenant. (To comply with the law, the landlord must do both.)

  NOTE: If service is done by post & mail and the tenant does not Answer, the tenant can be evicted on the 8th day after service of the papers.  But without personal service, the landlord had no right to ask the court for money from the tenant.  Any attempt to do so is illegal.  

For More In-depth Answers  See the GA Court Manual on How State Court Judges Should Handle Various Landlord Tenant Matters.


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            Responding To An Eviction Notice [i

The tenant must ANSWER THE EVICTION PAPERS or lose the right to challenge the eviction in court.  An ANSWER is the tenant's legal reply to the landlord's dispossessory affidavit.  

When eviction papers have been served, the tenant has only 7 days to file his answer with the court.  The last day to Answer should be written on the eviction papers served on the tenant.  Any tenant who does not file an Answer within the 7 day period can be evicted on the 8th day.  Excuses for being tardy don't count here.  

It costs nothing for the tenant to file his answer with the court and the answer does not have to be in writing.  All the tenant needs to do is go to the office of the clerk of the court named on the dispossessory affidavit and have the clerk write on the eviction court papers the tenant's DEFENSES (reasons why the eviction is unjust and should be stopped).  The clerk should also list any money claims the tenant wants to bring against the landlord.   

Claims of money owed to the tenant arising from the landlord tenant relationship are called COUNTERCLAIMS and must be submitted with the Answer.  Each counterclaim should list the amount of money owed and the reasons why it is owed.  

If the clerk refuses to take an answer within 7 days of service, immediately ask the clerk to check with the judge about the tenant's right to make an answer.

After the answer is filed, the court will set up the case for a hearing before the judge, usually within a week to ten days.  The time depends on the court.  At this time, the tenant is allowed to remain in his apartment until after the hearing.  In fact it is illegal for the landlord to evict the tenant before the judge hears the case.  

At the hearing the tenant has the opportunity to tell the judge why he/she should not be evicted.  If the tenant loses, the judge will sign a "writ of possession" and sometimes a separate "judgment" for any money the judge finds the tenant owes.  

If no answer is filed, on the 8th day after service of the dispossessory, the landlord can ask the clerk to sign a "writ of possession."  Then the landlord can check with the clerk on executing the writ.  In most courts, the Marshall or sheriff's department has a schedule to supervise a physical eviction.  The landlord is responsible for removing the tenant's property or arranging for another to do so.  

The marshal or sheriff may put a notice on the tenant's door, sometimes called a "24 hour notice", to let the tenant know that the physical eviction will happen the next day.  

At this point the landlord can still settle the case with the tenant and not execute the writ.  The landlord will need to call concerning the date and time for the eviction with law enforcement staff.  Keep in mind that SETTLEMENT CAN BE RISKY FOR THE TENANT BECAUSE THE LANDLORD MAY TAKE THE MONEY AND STILL EVICT THE TENANT.   

If both parties decide to settle, the tenant should make sure that the landlord voids the writ.  Both parties should also be clear about whether the tenant will remain on the property.   Get the landlord to spell out these issues in writing.  

Landlords and tenants can agree to a move out date and time before the date and time law enforcement will be there to supervise the eviction.  Landlords do not have to do this but such may save them money and time for the physical eviction.  

The landlord has no legal obligation to protect the personal property of a former tenant being evicted.  This is another good reason why both parties should make arrangements to let the tenant move out at a particular time.  

If there was personal service the landlord can get a court judgment for rent and utilities.  If not paid, the landlord can file a garnishment against the tenant or refer the matter over to a collection agency.  If there was no personal service, the landlord cannot collect money from the court as such is illegal. (May or may not stop the landlord from having a collector ask for the money anyway/ruin your credit) Call landlord hotline to find out.
 

For More In-depth Answers  See the GA Court Manual on How State Court Judges Should Handle Various Landlord Tenant Matters.


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            Tenant Defenses Against Eviction[v

Here are some possible defenses to an eviction.  Each of these defenses is situation specific and may not necessarily apply to your circumstances.  

DEFENSE #1

THE TENANT DOES NOT OWE ANY/ALL OF THE RENT THE LANDLORD CLAIMS.

DEFENSE #2

THE TENANT PAID RENT WITHIN SEVEN DAYS OF BEING SERVED WITH EVICTION PAPERS.  If the landlord is trying to evict you only for nonpayment of some or all of the rent, you can stop the eviction by offering cash or a money order to the landlord for the rent due PLUS the court cost of the eviction action.  BUT THIS DEFENSE WILL FAIL UNLESS this is the first time within 12 months that you have been served with eviction papers.  Under Georgia Law, a tenant late for the first time within a 12 month period has 7 days from the time served to pay all costs. O.C.G.A. §44-7-52, 44-7-73.  

Note: the tenant should always answer an eviction notice in court whether or not the landlord takes the money.  Failure to do so is an invitation for trouble.  Also, it's best to pay the landlord in certified funds such as a bank check or money order.  Avoid cash.  Keep copies of your bank check or money order so you have proof you tendered the money.   

DEFENSE #3

THE LANDLORD DID NOT GIVE THE TENANT ENOUGH TIME TO MOVE OUT.

This defense is invalid when the eviction is based on the

tenant's failure to pay rent.  In other circumstances:

 

The landlord is to give the tenant notice of when to move.  The time given may be agreed by the landlord and the tenant, either in writing (a lease for example) or verbally (by talking).  

If no time was agreed by the landlord and tenant for the lease to end and a time for notice to move was not agreed; the landlord must give 60 days notice to move. O.C.G.A. Section 44-7-7.

  DEFENSE #4

THE LANDLORD DID NOT DEMAND (in writing or in person) THAT THE TENANT MOVE OUT BEFORE FILING IN COURT TO EVICT. O.C.G.A. Section 44-7-50.  

DEFENSE #5

THE LANDLORD TOOK THE TENANT'S LATE RENT MONEY AND DID NOT GIVE HIM WRITTEN NOTICE THAT RENT MUST BE PAID ON OR BEFORE A SPECIFIC DATE. (LANDLORDS SHOULD PUT IN WRITING WHEN RENT IS CONSIDERED PAST DUE).  

DEFENSE #6

THE LANDLORD WOULD NOT TAKE THE RENT EVEN THOUGH THE TENANT OFFERED IT ON TIME. (Tenants should make copies of the dated check or money order that the landlord refused to cash or present cash to the landlord in front of reliable witnesses).  

NOTE: The rights of tenants in evictions are written in Georgia law.  The law is in the Official Code of Georgia Annotated (O.C.G.A.) beginning at Section 44-7-1.  Books of Georgia law can be found in county and law school libraries.  

For More In-depth Answers  See the GA Court Manual on How State Court Judges Should Handle Various Landlord Tenant Matters.

Possible Counterclaims Against The Landlord[vi]

Here are some claims against the landlord that you may want to file with your answer.

1.   THE LANDLORD VIOLATED GEORGIA SECURITY DEPOSIT LAW.  O.C.G.A. Sections 44-7-30 through 44-7-36.  

2.   THE RENT DUE THE LANDLORD SHOULD BE REDUCED BECAUSE THE LANDLORD DID NOT REPAIR THE HOUSE RENTED, AFTER THE TENANT GAVE THE LANDLORD NOTICE OF THE REPAIRS NEEDED.  

The tenant may claim other money besides reduced rent.  In residential housing situations, the landlord has a legal duty to make repairs even if the lease says otherwise. (O.C.G.A. Sections 44-7-2, 44-7-13, 44-7-14).  

3.   THE LANDLORD HAS VIOLATED THE RIGHT OF THE TENANT TO USE THE PROPERTY RENTED: if the landlord evicted the tenant without going to court; locked the tenant out of the house; or turned off water, electricity or gas; or did something similar. (O.C.G.A. Sections 44-7-1, 44-7-11, 51-9-1.)  

Note a landlord who cuts off utilities to evict can be fined up to $500.00 (O.C.G.A. Sections
        44-7-14.1.). For other money claims against the landlord See
         The Basics-What The Landlord Must Do First. 

For More In-depth Answers  See the GA Court Manual on How State Court Judges Should Handle Various Landlord Tenant Matters.

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[1]O.C.G.A. 44-7-36 says 44-7-33 does not apply when the landlord owns fewer than ten units but this is contradicted in 44-7-34. That law makes clear that the landlord shall make a list of damages as provided in 44-7-33.

[2]Leases usually hold both tenants liable for the entire rent. Failure to pay such can result in the eviction of both tenants even though only one was at fault.

 



[i] Brought to you by The Georgia Legal Services Program, entered 8/22/98)

[ii] Brought to you by The Georgia Legal Services Program, entered 8/21/98)

[iii] Brought to you by The Georgia Legal Services Program, entered 8/1/98)

[iv] Brought to you by The Georgia Legal Services Program, entered 8/1/98)

[v] Brought to you by The Georgia Legal Services Program, entered 8/1/98)

[vi] Brought to you by The Georgia Legal Services Program, entered 8/1/98)

[vii]  Undated Pamphlet by U.S. Department Of Housing and Urban Development Office Of Fair Housing and Equal Opportunity (entered November 20, 1998).