The Eviction Process in Georgia for Failure to Pay Rent

The process for moving from failure to pay rent to ejectment for residential leases is a multi-step process: 

Pay Rent. 

In most leases the rent is due on the first with a 5 day grace period. 

Pay or Quit Notice 

If a tenant fails to pay and the was entered into or renewed before July 1, 2024, the landlord must give three business days to pay.  The notice to pay or quit must be posted on the door in an envelope. The landlord must also comply with any lease notices. 

Court Filing - Dispossessory

If the tenant does not pay or quit, the landlord can start the dispossessory action by filing in the magistrate court (usually) a dispossessory affidavit. 

During this time, during the failure to pay rent case, the landlord cannot accept money, even partial payment.  However, the tenant should keep the money and not spend it. 

Tack and Mail or Service.

In these type cases, the tenant does not have to be personally served.  The court stamped dispossessory affidavit and summons can be placed on the door (tacked) and mailed. 

Answer and Counterclaim

The tenant will have 7 calendar days to respond with an answer (and counterclaim if appropriate). I recommend the tenant consult with an experienced tenant lawyer to discuss his or her rights, defenses, and claims.  However, if you cannot do so, file the answer to meet the deadline.

Writ for No Answer

If a tenant misses the deadline, the landlord can apply for a writ.  Once the judge signs it,  the Marshals/Sheriffs will be scheduled to come for ejectment day. 

Court Date

On your court date, be on time, have your exhibits printed, and have your witnesses ready. Phone evidence is often rejected because of the germs that are on phones.  Many judges don't want to touch phones.  I know I don't want to touch an opposing party's phone.

Once the docket has been called, you will be told to go out to speak with your opponent to exchange exhibits and to discuss settlement.  Some courts have mediators to discuss cases with parties in an effort to resolve them. 

Hearing - Order

After both sides argue their case, the judge will decide who wins and for how much. 

If the landlord wins, the tenant will have seven days to vacate or the landlord will apply for a writ. 

If the tenants win, they can stay until the lease runs our.

Ejectment 

If the landlord wins and the tenants don't vacate, the landlord will obtain a writ and schedule a date for the marshal/sheriff to come to the property to keep the peace while the movers eject the tenants. Each department has a certain number of people a landlord must have to move the tenant out of the premises and onto the lawn, sidewalk, or driveway.  After everything is out, the landlord should change the locks. 

 

For Landlord-Tenant Actions, Should You Hire a Lawyer Even If You Failed to Pay Rent

The short answer is it all depends. 

If you failed to pay rent because you lost your job or had a family emergency and cannot catch up on back rent, you probably don't need an attorney.  You should probably start to pack, leave, and turn in the key before the dispossessory action is filed, unless you have a large legitimate counterclaim or your landlord is willing to agree to new terms in writing. 

However, if you have back rent, want to stay in the property, and have a counterclaim for failure to repair, an attorney may be a good investment.  Also, realize lawyers in these type cases are meant to guide you through the process and speak on your behalf to get a settlement. 

Going into court

If the matter cannot be settled, an attorney may not help you if you don't have any money to catch up on rent.  The key is put the money aside once the landlord refuses to accept rent.  Also, make sure any agreement you sign states there is a disputed balance of fees, fines, and penalties that the parties have agreed to zero out because of a compromise.  Once  that agreed upon balance has been paid, there should be a provision that says the matter is dismissed with prejudice. 

LIMITED RESIDENTIAL TENANT REPRESENTATION

 To streamline my practice as I move to reduced office hours, I will limit my residential tenant representation to those tenants who rent from the following:

This is for residential tenants only:
To streamline my practice, I am accepting new cases if your landlord is one of the following:

1. Invitation Homes (and its subsidiaries);
2. Tricon
3. Pretium Partners
4. Home Partners of America
5. Progress Residential
6. First Key Homes
7. AMH
8. Amherst Holdings
9. PMI Georgia
10. Excalibur Homes
11. Evernest Property Management
12. Greystar

I will still represent small landlords and all commercial landlords and tenants.

NEW TENANT FEES FOR JANUARY 1, 2025

 Unfortunately, the Firm has decided to cut its representation of residential tenants significantly.  It is focusing on tenants whose rent are $3,000 and above.  I used to take a significant number of lower income cases, but that stops effective January 1, 2025.   

My new fees for residential tenant cases in State or Superior Court will range from $350+/hour with an initial retainer of at least $5,000.

If you want to take depositions or require subpoenas, the retainer will go up significantly.  Depositions cost about $3,000 for a 2-3 hour takedown. 

Also, motions will drive up costs several thousands dollars, and mediations will cost $250/hour for the mediator and $350/hour for me.

I will have more time to take these time intensive cases, but you will have to determine if your damages are worth the out of pocket expense.  This analysis will required one or two office or Zoom conferences at $250/hour with a two hour retainer of $500.00.

Once the case starts, the Clerk's Office and the Judge control the calendar.  Lawyers have limited ability to force their cases on the calendar. Therefore, mediation and settlement might be the pragmatic and efficient way to resolve the case.  However, if a bench or jury trial is needed, expect to spend at least $24,000 between the pretrial order through to post-trial motions. 

Furthermore, nothing is guaranteed, even if you go to trial and win.  A significant jury verdict is likely to result in post trial motions and/or an appeal.  Appeals are extremely expensive.  My rate for appeals are $450/hour with a $25,000 retainer. Again, overall, the best option in most cases is to go to the table and try to resolve the matter through settlement. 

Eviction Actions in Cobb County Magistrate Court

 Last week, I was in Cobb Magistrate Court in a dispossessory action. Things have changed over there.

The following are just a few things you should know if you are served with an action to evict you.

1. Although the form for the landlord is online in the Cobb County Magistrate section, the form for the tenant isn't. This is unfortunate. However, there are still other counties that have the check box form online, including Cobb County. The check box form gives you ideas on defenses you can use. It also has a counterclaim section that will assist you in completing that area if you have a counterclaim.

2. If you walk in, the tenant form has a lot to be desired. If you want to file a counterclaim, make sure you attach an additional sheet with details and amounts. Again, the checkbox form answer sheet that is still online in other counties will give you ideas on how to present your counterclaim.

3. There is a nonprofit to give you some advice before signing a settlement agreement, but unless you have zero defenses, call a lawyer and take advantage of firms' free consultations before answering and before going to court.

4. Most times, hiring a lawyer to be with you in court should assist you in navigating what is clearly a stressful day. Paying may allow you to stay on the property until the end of the lease or deduct the claimed rent and fees.

In my case, I saved the client over $2,000, and that savings was after my attorney's fees were netted out. Additionally, she was able to stay on the property. Remember, if you want to stay on the property, you negotiate at a slight disadvantage, but you can have a good outcome nonetheless.

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Leaving a Rental Property Early as a Residential Tenant in Georgia

 There are numerous reasons to leave a property earlier than expected.  However, regardless of the reasons, the tenant and landlord should agree on termination provisions. 

1. A vast majority of leases require both parties to the lease to place their agreements in writing and have it signed by both parties.  Otherwise, the parties may be subject to damages.  

2. Even if the termination is based on constructive eviction, the tenant should consult an attorney.  Leaving early is risky.  The property has to be objectively uninhabitable, and you take the risk of having a court determine the place was not in fact uninhabitable.  An experienced tenant lawyer should be able to walk you through the thought process so you can make an educated decision.

3. If you claim the rental property is uninhabitable because of mold, hire a mold testing service who will complete a report and testify at trial, if necessary.  Taking pictures of a black substance is usually not enough to prove mold.  If you are claiming health issues caused by mold, you will need to take that mold report to the doctor to confirm that mold caused your health problems.  It will also be necessary for your doctor to provide a report that complies with the evidence rules. 

4. If there is an early termination provision in the lease, make sure you comply with that provision to the letter.  This requirement includes providing notice to the landlord in accordance with the lease. 99% of the time, oral notice and texts are deemed insufficient notice. 

5. If you have given proper notice for a date certain, you should coordinate an inspection and take pictures and videos of the rental property (inside and out).  The landlord has the right to refuse this request, but that does not waive your right to inform them that you have vacated, the keys and other items are where the parties agreed, in the drop box, or on the kitchen counter.  Just because your move out date is September 30th, doesn't mean the landlord can rely on that date.  You, as the tenant, have to tell them after you moved out that you have vacated.  This is so because some tenants say they will move on September 30th, but stay anyway.  You don't want to be charged for an extra month because you failed to notify the landlord that you have turned over possession.   

If you have further questions, contact The McGill Law at (770)367-1234 or demandingjustice@gmail.com.

SAVING THE INNOCENT LANDOWNER FROM TITLE FRAUD IN GEORGIA

 Today, I went on the Gwinnett Courts website and saw a warning to homeowners that alerts them to title transactions.  It's at gwinnettcourts.com  .  Kudos to the clerk and to Georgia for making the homeowner who goes to the site aware of the problem.  

However, what percentage of homeowner visit the site in Gwinnett?  

Even if they did a flyer drop to reach the elderly, would that be enough?

Is this measure enough to protect a vast number of victims?

Some may say the laws need to catch up with the thieves.  The entire transaction needs to be slowed down. True owners should be able to go into court within 12 months to challenge the transfer, lien, and fraud perpetrated by scammers. Between innocent homeowners and lending institutions, the innocent homeowner should be protected.   

There are other protections that owners should be allowed that are similar to those are afforded credit card holders whose credit cards are stolen and used.  There is already a model to this delayed full title transfer.  In tax foreclosure sales, the purchaser of that property knows there is a period that the owner can restore the property.  The only difference is once the "innocent/victim" shows fraud in Court, the responsibility falls on the transferee/lender to chase down the person or company that scammed them to obtain their funds.  If the lender or transferee is left "holding the bag" on these fraudulent transfers, greater care will be taken to confirm the validity of the transaction. 

If those holders are allowed 30 days to challenge transactions, there is no reason that land and homeowners shouldn't be given 6-12 months to restore heir status.