09. DEALING WITH PROBLEM TENANTS, EVICTION IN GEORGIA
In Georgia, a dispossessory action (also sometimes called an EVICTION) is the process a landlord uses to regain legal possession of the property when the tenant either stays too long (holding over) or does not pay their rent on time (non-payment of rent). Before a landlord can evict a tenant, they must provide the tenant with the proper DEMAND notice. There are typically three different types of eviction notices that are commonly used. They are:
- Pay Rent or Quit Notice – This notice is typically given when a tenant has not paid the required rent or fees which are due under the agreement. The landlord uses this notice to let the tenant know that if they do not pay the amount owed, the landlord will take them to court and they will have to leave.
- Cure Default 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) and is in default under the terms of the lease. An example that happened to me was when I had a tenant running his taxi stand business from the front porch. This notice is used to warn the tenant that they are IN DEFAULT, and gives them an opportunity to cure the event of default or else they will have to leave.
- Unconditional Quit – This notice would be given to order a tenant to move out within a certain period of time. For example, if a lease terminates on a certain date, and the landlord does NOT want to renew, this form makes that clear. 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.
9.1. THE DEMAND NOTICE
Georgia law requires that you formally make demand for the property before you file for an eviction. You can’t make demand until the tenant is either in default or is late with the rent, so you have to wait until after the fifth. Also, the law does not specify that the demand must be in writing, but unless you document the demand, you will have no proof that a demand was ever made, so I always use a written demand notice.
To begin the dispossessory eviction process, certain rules must be followed in Georgia.
In a nutshell:
1. The landlord must demand possession of the property, either in person, in writing, or verbally, and the tenant must refuse before a dispossessory process can begin. In writing is preferred. No waiting period is required. You may demand the property in person or by tack & mail, then proceed directly to the courthouse to file a dispossessory action.
2. The landlord or his attorney must then sign an affidavit that says that a demand has been made and that the tenant has refused to pay or leave as demanded.. This is called “filing a dispossessory action” and will cost you around $100, depending on the county.
3. When the affidavit is made, the judge of the superior court, state court or magistrates court with jurisdiction over the property will issue a summons which is to be served by the local sheriff’s office or marshal, depending on the county. In most counties, you are able to pay to use a PRIVATE PROCESS SERVER if you wish.
4. The affidavit and summons are then served, usually by “tack and mail” upon the tenant at his residence requiring the tenant 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 in 7 days after the writ is issued, but only under the protection of a sheriff or marshal..
If “personal service” was obtained, the landlord will likely 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. This defense can be claimed only once in a 12 month period in Georgia.
KNOW that a non-attorney cannot represent himself in STATE COURT or SUPERIOR COURT in Georgia, so if you wish to pursue these matters yourself, sue in MAGISTRATE’s COURT only.
My strong advice is to hire an attorney, at least until you are comfortable with the procedure.
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I wait until the sixth day of the month, and I use the “tack and mail” procedure for my demand notice delivery. This is similar to what the sheriff’s department uses when they deliver a summons, so the court is already familiar with the procedure.
I go to the premises and ring the bell. If the resident is home, I deliver the notice to them personally and make a note of it. More often, no one is home, so I use a thumbtack to post the sealed and addressed envelope in a conspicuous place near the door, snap a photo of the envelope on the door with my camera, then mail a copy of the demand letter to the resident at the property address.
By the way, I go ahead and sign the demand notice personally, adding “Property Manager” after my name. Keep a copy for your records noting how and when delivery occurred and what, if anything, happened during the delivery event. This copy and it’s contemporaneous notes can be introduced into court as evidence if necessary.
Know that the court gives high regard to written notes recorded at the time (contemporaneous) as opposed to remembered later then written down (reconstructed). As you read this book, you will see that I repeatedly advise you to maintain a written log of your activities as they happen.
All I can promise you is that such a log, if ever needed, could be the difference between a civil judgement of tens of thousands of dollars against you personally, or your complete exoneration. If you don’t believe me, ask your attorney.
You will notice that the form has a place at the bottom for indicating how you delivered the form.
The Georgia law now states that a landlord can demand the premises and file for a dispossessory on the same day.
I usually make demand and go straight to the courthouse to file. Remember, my goal is not to get the property back, but rather to collect the rent.
If your true goal is to get the tenant to move out, you should go to them and tell them they will have to leave. In most cases, they will arrange to do so before you have to evict them. Even so, you should still demand the premises and follow the prescribed steps.
You can also time the demand to coincide with the promised payment date, in this case on the ninth day of the month.
I will usually call on the eighth, just to remind the tenant that the rent must be received before noon tomorrow. I also tell them that the owner has told me that if the rent is not in tomorrow, the owner will have to file for eviction. (They can’t be mad at me – I’m just the Property Manager).
If the promised payment is not received on the ninth, you are now in a good position to call the tenant again, ask what is going on, and tell them that the owners are going to have to file for a “dispossessory warrant”. That is just a fancy way of saying they are about to be evicted.
In most cases, the tenant will produce the rent before you get to this point.
Let me stress at this point that I have been landlording for over forty years, and I have had only ONE eviction that got to the point of putting someone out on the street, called a “set-out.”
Trust me, it is unlikely that you will ever get to that extreme. It is very likely, however, that you will want to file for a dispossessory at some point, as this can be an extremely persuasive tool for collecting your rent.
Look at it this way: for a measly hundred or so bucks, you can hire a large, burly man in a neatly pressed uniform, carrying a large loaded gun to deliver a nasty note to your tenant.
It is an inexpensive way of showing your tenant that your firm means business. Remember that your goal here is to get the rent paid as quickly as possible.
If you want or need help with the dispossessory process, there are companies that file the paperwork for landlords and know how to do it right the first time. Their fees are relatively small. Just go to google and search on (name of your county or metro area) followed by EVICTION SERVICE. Always shop & compare.
Remember that you can dismiss the dispossessory action at any time, and that you are doing this to protect your property and your rent.
After you have filled out the forms, the clerk will ask you to raise your right hand and swear that the statements in the form are the truth. Then you are done.
The marshal delivers a summons to the property, and will likely use the same tack and mail technique that you did for the demand notice. That process is called “getting service,” and it usually happens within seven days.