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. 

 

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.

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.

All reactions:

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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.

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.

Landlords are Still Blocked from Evicting Certain Tenants

 The CARES Act passed by Congress and signed on March 27, 2020, placed a moratorium on evictions for certain landlords and renters.  This protection ended July 25, 2020.  Therefore, a detailed analysis of this expired Act is not necessary.  

Approximately 1-1/2 months after the expiration of the CARES Act, the Center for Disease Controlled stepped into the landlord-tenant relationship and issued a temporary halt to certain residential evictions.  This is a broader moratorium than the CARES Act because it covers landlords regardless of whether they have a federal loan or accept VA or Section 8 tenants. Unlike the CARES Act, this moratorium allows the landlord to charge fees, penalities, or interest as a result of the failure to pay rent or other housing payment. The CDC states, it issued its moratorium to prevent the further spread of COVID-19.  Therefore, it covers residential tenants until December 31, 2020.  

The tenants must sign a declaration that states the following: 

(1) The individual has used best efforts to obtain all available government assistance for rent or housing;

(2) The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return),[6] (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;

(3) the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary [7] out-of-pocket medical expenses;

(4) the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit, taking into account other nondiscretionary expenses; and

(5) eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.

If you are in Cobb, Dekalb, Gwinnett, Cherokee, Clayton or Fulton Counties, and you are a tenant or small landlord, contact me with any questions by e-mail at demandingjustice@gmail.com

Rent Concerns are looking for Those Hit with Job Loses

Rent Concerns Arrive with April 1

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

AGAIN - TENANTS SHOULD CONSULT OR HIRE AN ATTORNEY BEFORE GOING TO COURT

Early this week I sat in court in Savannah while a woman tried to explain why she had not paid rent.  Her excuse related to health problems.  This was no excuse or defense under the law.  Unfortunately, she just glanced over a defense that may have afforded a few weeks, instead of the 7 days.

More specifically, before a landlord files a dispossessory, he or she must demand possession of the premises beforehand.  Oftentimes, landlords are quick to the draw and miss this step.  She breezed over this omission by noting he just said I was late and then I received this notice for court.

This failure to give notice should be given in your answer as an affirmative defense.  However, if you have already filed your answer, you can still raise it in court.  However, in that instance, you have the burden of proving the defense. 

In the case in Savannah, the landlord's attorney, but not the landlord appeared. 
Therefore, if the poor woman had just focused on that defense, above all, she would have won because there would have been nobody there to dispute her assertion. 

Again, if the case had been dismissed on this technicality, it would have allowed her approximately
2-3 weeks to find a new place.

An experienced tenant attorney would have given her that defense in a short phone call or a 30 minute consultation.  This information would have armed her with a defense to represent herself and win in court.  Don't short change yourself by doing it alone.  Get some help with an experienced tenant attorney. 

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.

New Office in Atlanta

COMING SOON

New office in the Atlanta area to accommodate clients' schedules during my Winter and Spring break.

The Firm understands that not everyone has a Monday - Friday 9am to 5pm life.

Dispossessory (Eviction) Actions

The Firm still takes a limited number of dispossessory actions for residential tenants. However, if there is a counterclaim, it has to be $15,000 or less.  Right now, I have an overabundance of former dispo actions that were moved to State and Superior Court because of the size of the counterclaim.

Starting July 1 Residential Tenants Will Not Receive the 5 Minute Free Screening Consultation

The Firm will no longer give residential  tenants free 5 minute screening consultations. 

If you are a residential tenant and want to consult with the Firm, you can schedule a 15 minute paid phone consultation for $50.  This $50 will not be applied to the retainer.

The areas of consultation for residential clients are the following:
(1) filed or threatened evictions;
(2) wrongful completed evictions; or
(3) landlord's claim for damages to the rental property that exceeds $15,000.

Some Folks Have Made the Tenant Attorney Shortage Even Worse

Effective June 1, the Firm will phase our its residential tenant practice.  I personally like the practice area, but financially and otherwise, it's not worth it anymore.  Over the years, I have been told that other lawyers have stopped their representation in this area out of frustration.  Some people can't be helped and others aren't worth helping.

Effective June 1, the landlord tenant practice will focus on the following:
1. Commercial Tenants
2. Commercial Landlords
3. Residential Landlords
4. Management Companies

Also, I'll be expanding my representation of homeowners and Homeowners' and Condo Associations. 

These groups tend to understand business, time constraints, and the court system.  Furthermore, they understand the importance of paying for quality services and extended statute of limitation periods. They tend to be more realistic about goals, return calls, start and termination timing, and other procedures.

I've met, talked to, and helped  numerous good residential tenants.  Like everything else today, the slaggers have ruined it for them and everyone else.  Therefore, if you are a tenant and can't find a lawyer to assist you, you can thank them. 

Although I will still be accepting new residential tenant cases through September 15, if I don't think the case will end by September 30th, I will not start it.

REFUNDS FOR UNPROCESSED WORK --- JUST ASK FOR IT

The McGill Law Firm is busy with calls, meetings, hearings, and trials.  When a client wants to go to another attorney because of delays, just say, I want a refund for my unprocessed work.  Some folks get so dramatic about a simple request.  Think of it as returning a blanket at Target.  The only difference is services already performed are taken out of the refund.   You really don't even have to tell me why you want a refund for your unused retainer.

I have about a 10% quit or fire rate (either I fire the client for many reasons or the client fires me because they can't wait).  Those slots are quickly filled (within the week) with other people who need legal advice and representation.   Most of those new clients have just received notice of a potential eviction.  Therefore, as much as I would love to have 100% completion rate, it's just not realistic.  Delays happen all the time, including having a 5 minute screening call turn into a 30 minute screening call; preventing an eviction with a trial in a week; a morning trial that turns into an all day affair; or a motion that takes much longer to complete. 

I get those same calls from people who are impatient with their current attorneys.  If you want to call me because your landlord-tenant attorney is moving too slowly, you may be calling the wrong attorney.  If you are impatient with an attorney with a paralegal and legal assistant because he's not getting to your case fast enough, you will be impatient with this solo attorney. 
 

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.

Dispossessory Trial Days

Although many dispossessory hearingd take about 15  minutes once a case is called by the judge, what needs to be done to get to the podium to defend a tenant case takes hours.

Night before - copies and file organization

9:00 trial times normally means an 8:00 arrival time. 

8:00 - review file again

8:30 - discuss matter with clients, assuming they show up on time

9:00 - calendar call and case announcement

9:45 -wait for mediation or discuss the matter with landlord's counsel

10:00 - discuss reasonable terms with the tenant/client that she can comply with during the remainder of the tenancy

10:30 - if the case settles, draft an agreement and present it to the judge

10:30 - if the case doesn't settle, wait for a hearing.

11:00 - hearing. 
(some dockets are so large, they go into the 1:00 session).

12:00 - off to the 1:00pm dispossessory calendar, to start the entire process over again.

Amended Spring & Summer Hours

Spring & Summer Hours

Monday - 1:00pm - 6:00pm

Tuesday - 10:00am - 6:00pm

Wednesday - 10:00am - 6:00pm

Thursday - 10:00am - 6:00pm

Friday - 9:00am - 1:00pm

Saturday & Sunday - Closed

Holidays & Vacation - Closed