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. 

 

You Tube Landlord for Entertainment Purposes Only

A few days ago, I ran across this YouTube channel. It is entertaining, but don't follow his advice. 

In the video below, he runs through apartments that have been trashed. He doesn't take the damage checklist seriously. Instead, he says, the pictures show how bad it is. In Georgia, that wouldn't fly.

Landlord Damage Video

Georgia Landlord Requirements

In Georgia, a landlord must do a move-out inspection within 3 business day and complete the checklist (with estimates). Pictures and videos should be taken. The breakdown must be Sent to the former tenant because she has the right to return to the unit to see the claimed damage and challenge anything.

Within 30 days, send any portion of the security deposit with a breakdown that explains what is owed in unpaid rent and damages. I recommend using that same move out list to itemize.

If a painter has to paint several rooms, demand a breakdown of cost for each room. That goes for all repairs, including carpets. This breakout ensures you will get something if a judge decides you cannot be reimbursed for certain rooms or certain repairs. 

Landlords and Tenants Should Prepare for the Economic Downturn

As the economy continues to decline, landlords and tenants should review different economic scenarios to determine if they're ready for 2023.

For tenants, do you have a recession proof job? If so, you may not have to worry about defaulting on your lease. For everyone else, see if your landlord will agree to a 3 or 6 month lease period once your lease is scheduled to renew. A shorter period may suit you better to protect you against default just in case you lose your job. 

For landlords, do you have a repair/replacement fund for leaky roofs and busted hot water heaters? Can you survive another prolonged period when you don't collect rent as courts and sheriffs slow walk dispossessory actions and evictions?

Also, both parties should know their rights under the lease and the law. A quick or not so quick evaluation may be the answer before trouble comes.  The Firm would be happy to evaluate your document in a 15 - 60 minute conference by phone or Zoom. 

REPAIRS

You don't know how many calls and emails I receive per month from tenants who are shocked that they cannot withhold rent when the landlord doesn't repair. 

At the same time, landlords are shocked they have to repair when the tenant doesn't pay rent.  

In residential leases, a landlord cannot contract away its legal obligation. However, if a landlord refuses to repair, the tenant can use repair (pay) and deduct to repair the property. I recommend tenants research this option before using it. 

In all, there are several factors both parties should consider before entering into a new lease or letting an old lease auto renew. If you are old enough to remember the first great recession, you can easily learn from any mistakes and seek to avoid them. Otherwise, prepare for the worst and hope for the best. 90% of large CEOs and bankers expect the second great recession will hit us 2023 and continue into 2024.

Lease Nonrenewal are Becoming a Problem

Now that people have received their taxpayer funds to pay their back rent, the next big threat to tenants, at least, is the landlord's decision to not renew leases.

This has become prevalent because some leases have renewal clauses that limit how much the rent can be raised during the next term. If the landlord can move the old tenant for a new tenant, the rent can be raised hundreds of dollars. Without a rent increase clause, the landlord can increase the rent anyway.

Georgia law on non-subsidized housing does not protect the tenant with right to renew laws and rent caps. Therefore, unless the landlord is willing to negotiate with you, the best thing to do is move on to another location.

Shutting Off Utilities Can Cost You

I understand landlords' frustration with the CDC and it's refusal to take small landlords' dire situations into consideration. However, don't make a bad situation worse by shutting off your tenants' utilities.

GEORGIA CODE

Georgia code 44-7-14.1 makes it unlawful to suspend utilities until the dispossessory process is over.  Additionally, if convicted, the court can fine you up to $500.  However, that is just the state's penalty.

WRONGFUL EVICTION

The tenant can also sue you for wrongful eviction, which would include actual damages for loss of power, emotional damages, and punitive damages. It's not worth the hundreds of dollars you may save by shutting down the power if it costs you tens of thousands of dollars for being impatient and frustrated.

STEPS TO TAKE ONCE YOUR 

UTILITIES ARE SHUT OFF

1. Email the landlord and demand restoration.

2. Document any food loss from electricity loss.

3. Document extra expenses and time off from work.

4. If the a/c or heat are inoperable, document the temperature.

5. Every 24 hours, email your landlord until service is restored.

6. Call a lawyer to determine if immediate intervention is required.

7. Once service is restored contact a lawyer to discuss claims against your landlord.

Numerous People Can Take Responsibility for Yesterday

 I blame so many people for what happened and our current state of affairs:

The people who screamed impeachment on 1/20/17.

The Russian hoax perpetrators.

Pelosi and her crew for the impeachment and other nonsense she instigated.

Biden who allowed his son to act as a vacuum cleaner for money.

The MSM who cannot distinguish fact from opinion.

The MSM for not reporting the news

Facebook & Twitter for being biased.

The biased creation of self-appointed "Fact Checkers" who do nothing but fan flames.

GA, MI, AZ, PA legislatures for not getting control of the situation.

The secretary of states for changing rules unconstitutionally

Those who prevented an honest review of election counts

Trump for not speaking in complete sentences to explain what happened

The Kraken nonsense

Lin Wood for his statements

Trump for not acting like the adult in the room.

The Capitol police for not being prepared for all certainties.

Trump for not calling up reinforcements.

The MSM for continuing to fan the flames.

Congressional Democrats for showboating.

The MSM and Democrats who supported the summer of burning and looting, even in our nation's capital.

Those who entered the Capitol. I still don't know if they were Trump supporters or anarchists.

Enticing a Renter to Leave Before Court Starts Again

For small landlords, if you haven't been paid rent since April, and you want immediate possession to the rental property, you should considering enticing your tenant to leave by entering into a payment plan that does the following:

1. Put the tenant on a payment plan and provides all updated info in a rental application.

2. Get a co-signer/guarantor of that payment plan, if necessary

3. Pay for their moving expenses up to a certain dollar amount

4. Excuse the last payment on the plan if the tenant moves out as agreed.

5. Don't include the security deposit in any part of the agreement because there may be damages to the premises.

If you need further assistance, contact me to discuss your options.

Short Lived Break/Semi-Retirement

Thanks to the Corona virus and the uncertainty in the rental market, the Firm is moving to full-time hours again on April 1 to answer your landlord tenant questions, negotiate back rent payments, and represent small landlords and all tenants in eviction matters in Magistrate Court.

For now, the hours are 11-3.

Starting April 1, the hours will be

Mon - 1:00 - 4:00

Tues - Thurs - 10:00 - 4:00 

Fri 10:00 -3:00

Weekends - Closed

Pro Se Litigants - Second Time Around

I've received calls from 2× pro se litigants who allowed hubris to cost them a case.  More specifically, they represented themselves in a landlord-tenant matter and won against a lawyer.

Now, they'll Clarence Darrow and are telling everyone within ear shot.

Next time the "winner" has a dispute, he thinks lawyers are a waste of money. He's not even going to seek a free phone consultation.  This time, the internet lawyer loses. He waits weeks after the hearing to call a lawyer.  In a normal civil action in Georgia, a 2-3 week delay isn't fatal. However, dispossessory/eviction cases aren't normal civil actions.

Unfortunately or fortunately, depending on your position, eviction cases are on a rocket docket.  7 days after a judgment for the landlord, the tenant must vacate or file an appeal.  Paying the landlord the judgment won't save you unless you entered into a settlement agreement to stay or the order specifically states you can pay then stay.

If you don't understand what's in an order, schedule an office visit to learn your rights and responsibilities. If you don't understand all terms in a settlement agreement, you should consider the pros and cons of settling versus going before a judge.

Dead Three Years in an Apartment

Recently, a veteran, who had diabetes, was found dead in his Texas apartment.  The man died approximately three years ago, but nobody knew.  He was on the floor for three years unnoticed.

In Georgia, this could happen to renters.
Right before his death, the veteran had moved into a new place without telling his family.  Apparently, the family didn't know his friends and vice versa.

The tenant had direct deposit for his military retirement and automatic payment for his rent.  The reports haven't said how his utilities were paid in those 3 years. Apparently, he had automatic payment for his other bills or the creditors never reached out to his listed contacts.

The one issue that has perplexed internet laypeople is the lease.  Although a significant number of leases are one year, in Georgia, the standard apartment lease has an automatic renewal clause.  In those instances, when neither the landlord nor the tenant sends a nonrenewal notice, the lease is automatically renewed for another year or month to month.  That continues until a nonrenewal notice is provided. So, in a perfect storm, this could happen in Georgia.

In the Texas case, he was a month to month tenant. There was no indication that he ever signed a one year lease.  More likely than not, the landlord thought he was the perfect tenant because he paid his rent on time and never complained. 

If you have medical issues like he had, you should remain close to at least one person and provide that person with an emergency contact.  That person should know where you live and your telephone number.  Both of you should keep in regular contact. 

COUNTIES WHERE THE FIRM ACCEPTS NEW CASES

Primary Practice Counties

FULTON 

DEKALB

COBB
GWINNETT

The Firm accepts cases in all of its practice areas and in all courts

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Secondary Practice Counties

Cherokee

Clayton
Douglas

Paulding

Henry 

Fayette 

Forsyth

Newton 
Rockdale

The Firm accepts limited cases in its practice areas in State and Superior Courts.
Magistrate Court cases will be accepted in Cherokee, Paulding, Clayton and Forsyth Counties. 

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Additional Locations

Savannah 

Macon
Augusta

The Firm accepts limited cases in its practice areas in State and Superior Courts. 

Anti Retaliation Law to Protect Renters

The Georgia governor signed the renter anti-retaliation bill into law. The law goes into effect July 1, 2019. It's a good start, but a well drafted lease and careful planning by the landlord should prevent liability.  Of course, not punishing tenants when they complain will also prevent liability.

If you are a small landlord and need assistance on understanding the new law, call me for an appointment. (770)367-1234.

Be Careful of Presidents' Day Deadlines

Many courts in Georgia are not closed for Presidents' Day (Monday, February 18th).  If you have a filing deadline that falls on Monday, call the court to see if it will br opened.

Extreme caution should be exercised for dispossessory answers that are due this Monday. Unlike regular court actions, opening a default in an dispossessory action is nearly impossible.  As a result, a landlord may apply for a writ on Tuesday if an answer isn't filed timely.  Once the judge grants the writ, it's only a matter of time before the Sheriff/Marshal comes to supervise the eviction.

Posted Rates for Landlords in Georgia

The fees below are subject to change without notice.  Also, the Firm offers lower hour rates for established clients.

Initial Consultation (first office visit only) - Residential - $170/hour

Initial Consultation (first office visit only) - Commercial - $350/hour

Review leases - $350/hour

Draft a pay or quit notice (each notice) - $200 + postage

Draft dispossessory affidavit for failure to pay rent - $200 + filing fees and service

Draft dispossessory affidavit on hold over - $175/hour + filing fees and service

Draft dispossessory affidavit on tenant at sufferance - $300/hour + filing fees and service

Preparation for case - $350 for one hour and $300/hour for each hour thereafter

Copies, parking, transportation are charge to the courthouse and meeting

Trial date residential -  $600 first two hours and $275/hour for each hour thereafter

Trial date commercial - $350/hour

Obtain writ - $175 plus court and sheriff/marshal fee (transportation fee may apply)

Appear on day of eviction - $280/hour

Landlord is responsible for all expenses in the case.
Phone calls, e-mails, texts - $300/hr.
Any activity not listed above $350/hr.

APPEALS (STATE OR SUPERIOR)

$350/hr. with a $3,500 retainer
Plus expenses

REMOVALS TO FEDERAL COURT

$300/hr with a $3,000 initial retainer
Plus expenses

The Firm does not handle cases that are in bankruptcy.

APPEALS (APPELLATE OR SUPREME)
$350/hour plus copies and postage

Merry Christmas & Happy New Year

As we close our the year, I thank all those who have called the firm this year. 

I received over 2,000 calls from potential clients.  Many of those were helped with a simple 5-10 minute phone consultation.

Over 400 of those who called paid for a longer phone or office consultation.  During that consultation, I gave enough information to allow many to handle the matter themselves.

This year, I represented about 200 people in various matters, including divorces, landlord-tenant, consumer, and employment cases.

Next year, if you need legal assistance you should do the following:
(1) research the names of potential attorneys;
(2) call several offices to get their legal opinions;
(3) don't rely on one opinion to determine how to proceed;
(4) visit 1-3 attorneys in their offices;
(5) determine if you can handle it yourself;
(6) select the attorney who fits your comfort level, budget, and experience requirements;
(7) be realistic in your expectations; and

(8) think about calling this Firm for your legal needs.

What To Expect After You Receive A Pay or Quit Notice in Georgia

After you receive a pay or quit notice, you can pay and stay, fight the claim, or leave.  Unless the landlord releases you from the deliquent rent, you should expect a civil suit or collection action even if you leave within the time required in the notice. Other fees and rents may also accrue.

If you decide to stay and not pay by the deadline, expect the following:

- The landlord will file a dispossessory action.

- You will receive a copy of the affidavit  through personal service or tack and mail.

- You will have a 7 day deadline to file an answer and counterclaim.

- You can pay take advantage of the tender rule in rent cases by paying rent, fees, and court costs to the landlord before filing an answer. If the landlord refuses, that refusal should go in your answer.  If the landlord accepts full payment, still file a timely answer and include that payment in your answer.

- If you file your answer with the Court, the next step is to appear at a hearing. 

- Even if you settle with the landlord before court, check with the clerk's office to confirm the case has been removed from the docket.

- If the only issue is rent payment, personal emergencies (sickness, family death, job loss) are not defenses for non-payment.

- If you lose your first case, you can always file an appeal with State or Superior Court if you have a legitimate defense you believe was ignored by the court, or you believe evidence or witnesses you did not have in the lower court would have changed the outcome. That appeal must be filed within 7 days of the Court's judgment.

Types of Landlord-Tenant Cases the Firm Will Accept (Effective Oct. 1, 2018)

Monday, October 1st, marks the 16th anniversary of the Firm.  Experience and client referrals have brought an increased demand for services.  In the last three months, the Firm has seen an explosion in demand.  Because I want to remain small without sacrificing client satisfaction, certain services will be discontinued.

The Firm will Continue to Accept the Following Cases:

                1.   Dispossessory actions (small landlords and all tenants, hourly rate and flat fee)

                2.   Lease review and negotiations (commercial and residential)

                3.   Civil actions with a value of $20,000 or more for failure to repair, negligence,  breach of contract, nuisance, breach of the warranty of habitability, etc.(flat and hourly rate arrangements)

                4.   Repair and stay negotiations (hourly rate only)

                5.   Breach of lease claims (wrongful termination)(hourly rate only)

                6.   Civil actions (wrongful eviction, conversion)

                7.   Return of Security Deposit (defense of small landlords and prosection by tenants whose landlords have more than 10 rental units) 

                8.   Appeals to State or Superior Court (hourly rate only)

                9.   Appeals to Court of Appeals or Supreme Court (hourly rate only)

                10. Litigation for damages to rental property (pursue and defend).

                11. Fair Housing violations claims and defenses (all tenants and all landlords)(hourly rate only)

The Firm will no Longer Accept the Following Cases:

                1.   Claims by tenants against small landlords for failure to return a security deposit

                2.   Negotiations to terminate leases because of a failure to repair, nuisance, or insects.

                3.   Roommate disputes

                4.   Family-related landlord-tenant disputes unless a written lease exists

                5.   Health problems caused by mold 

                6.   Defense of tenants in dispossessory actions for failure to pay rent. 

The Firm's Free 5 Minute Screening Consultation & Paid Office Consultation

FREE FIVE MINUTE SCREENING CONSULTATIONS

The Firm offers five minute screening consultations at no charge to provide general information and to determine the need for a paid 30-90 minute office consultation.  Approximately 60-75% of the time, the callers wants one or two questions answered or want to be guided on issues like failure to repair, renewal/nonrenewal notice rights, and security deposit disputes.  In those instances, 5 minutes may be all that is required.  However, if additional services are needed, a paid consultation must be scheduled. 

During the phone consultation, expect numerous interruptions as I try to obtain relevant information.  Although you may want to tell your full story during the call, it's not the best use of your time. 

For landlord-tenant cases, the first questions I will ask are the following:

(1) the name of the other party (for conflict check purposes)
(2) whether you live in a house or an apartment
(3) the city and county of the rental property

If you have documents that you want me to see, the five minute screening consultation is not the time to read sentences to me.  Lay people often miss important provisions in documents.   Therefore, an office consultation is the best time for me to review the documents to determine your options. 

Although I offer paid phone consultations, I don't review documents e-mailed to me in preparation for the phone conference unless the matter is prepaid.   Any time taken before the call will be included in the charge.  For paid phone consultations, prepayment for the hour through credit card, debit card, or Venmo is required.  Prior to the end of the time, I will advise the caller of the time expiration.  You can choose to continue the call and incur an additional charge.

Keep in mind, litigation is expensive.  You get what you pay for in many cases.  I've been in 100s of court sessions.  I see people who could have benefited from having an attorney with them in court.  Even if they couldn't afford representation during the trial or hearing, at a minimum a 30 minute consultation may have put them on notice on what to expect and the pitfalls to avoid.

 

Georgia Renters - Prepare for a Hurricane with a Review of Your Lease and Renter's Insurance

Georgia renters, while you prepare for the hurricane, pull your lease and renter's insurance policy. If you have to evacuate, take these documents with you or scan the documents and e-mail them to yourself. If your rental unit gets flooded or damaged by wind or heavy rains, your initial contractual rights can be reviewed. LEASES Many leases allow the landlord to terminate the lease if the unit is destroyed by natural disasters (force majeure). Also, partial destruction of the rental unit may not relieve you of your obligation to make timely payments. Remember, any changes to written leases, including termination and the amount of rent or timing of rent must be in writing and signed by both parties. Otherwise, the agreement may not be enforceable. If you don't understand your rights, check with an experienced landlord-tenant attorney. Simply withholding rent because you cannot get back into your apartment or rental house may result in a dispossessory. The court action and the eviction will haunt you for years to come when it shows up on record searches and your credit report. Therefore, it's better to be proactive than reactive. RENTER'S INSURANCE Renter's insurance doesn't cover floods. However, if you can prove the items were damaged by some other cause, you may have a significant claim. Moreover, the insurance policy may cover hotel charges and other expenses even if it doesn't reimburse you for flood damaged items. One you return to your unit and review the damages, call your agent to discuss your coverage.

Changes in Locations and Types of Cases

Maryland, DC, and New York Cases (Remote Handling)

Effective May 1, 2017 and for the foreseeable future, with the exception of family law and employment (disputes, termination packages, and discrimination claims) in Maryland, the attorney will not be taking new cases in Maryland, New York, or DC that have to be litigated in court.

I will still accept other non-litigation cases in those states if the matters can be handled remotely from my Georgia offices.

If you are looking for a landlord-tenant attorney in Maryland, DC, or New York, I recommend you go to the several websites such as attorneys.com, lawyers.com, and avvo.com and interview several attorneys about their background and experience before hiring one.

Cases in Georgia

Cases in Georgia will still be handled and litigated as normal.   Go to demandingjustice.com to learn more about the The McGill Law Firm, LLC. The attorney will still represent clients who happen to live out of state, but have cases in Georgia.  Approximately 30% of the Firm's small landlord clients live out of state.

This decrease in travel will allow the attorney more time to handle Georgia landlord-tenant, family law, employment, and contract litigation matters.