Macon, Georgia - Tenant Eviction Process

EVICTION PROCESS IN GEORGIA – GUIDE ON HOW TO EVICT A TENANT IN GEORGIA

Step 1: Understand the Georgia Laws on Dispossessory Proceedings (Evictions).

Georgia law prohibits the use of “self-help” remedies to remove a residential tenant. See O.C.G.A. § 44-7-55. The only two ways to lawfully eject a tenant are (1) with the tenant’s consent; or (2) by court order. No matter what your lease says, if a tenant refuses to leave, your only option is to take the tenant to court. Failure to do so can result in criminal charges, as well as civil liability (including punitive damages for trespass) for any damage done to the tenant’s personal property.

There are three legal bases for evicting a tenant: (1) the tenant is holding over for the term of the lease; (2) the tenant fails to pay rent when it becomes due; and (3) the tenant is a tenant “at will” or “at sufferance,” and the landlord desires possession of the property back. O.C.G.A. § 44-7-50.

The first two are pretty self-explanatory. The last provision, especially regarding a tenant at sufferance, includes tenants who have materially breached a lease provision, but have refused to leave. Who are tenants at sufferance? The provisions of the lease control, but they include tenants who have:

Committed lease violations – (not rent related);
Allowed unauthorized pets in the home;
Allowed unknown occupants in the home, in violation of the lease;
Significantly damaged the property, in violation of the lease;
Committed crimes in violation of the lease; and
Are former owners of the property that remain in possession after a foreclosure;

Can a tenant deduct repairs from the rent paid?
No. In Georgia, the tenant’s obligation to pay rent and the landlord’s obligation to make repairs are independent of one another—a failure to repair does not in any way work a forfeiture of the rent. Instead, the tenant has to sue the landlord for recoupment. Lewis & Co. v. Chisholm, 68 Ga. 40, 46 (1881). Only where the repairs work a constructive eviction would a tenant not be obligated to pay rent.

How long does it take to evict a tenant?  How long is the eviction process?
As short as 14 days in some instances, but as long as 2-3 months in other cases.

Can I turn off the utilities if the tenant doesn’t pay the rent?
Any landlord who “knowingly and willfully … suspend[s] the furnishing of utilities [heat, light, and water service] to a tenant . . . shall, upon conviction, be assessed a fine not to exceed $500.00.” O.C.G.A. § 44-7-14.1.

Can I change the locks if the tenant does not pay the rent?
If your lease is for a residence, never. If it is a commercial lease, the landlord can do this if the lease specifically allows it, and it can be accomplished without disturbing the peace.

Step 2: Demand for Possession

This is the most important part of the eviction process.  Unless you have first made a demand for possession from your tenant, you are not able to file a dispossessory affidavit. The content and timing for demands vary based upon the reason for evicting. If the tenant is holding over, demand must be made after the end of the lease, but before filing the eviction. If the landlord wants to evict a tenant for nonpayment of rent, the demand cannot be made until after the due date.

The demand does not carry any special form, but must clear, unequivocal, and must give the tenant a reasonable opportunity to voluntarily surrender the premises.

Step 3: Filing and Serving the Dispossessory Affidavit

The third step is straightforward. The landlord, his agent, or his attorney must make a sworn affidavit (i.e., a document that signed by a notary or other official witness, such as a clerk or a judge) that identifies the tenant, which of the three grounds for eviction are being asserted, states that a demand for possession has been made and the tenant has refused, alleges any amounts due, and prays for the amounts due to be paid.

The affidavit, along with a summons, must be served upon the tenant either personally, or tacked and mailed. If the marshal or your process server utilizes tack and mail service, the Court does not have the ability to award you any money, only quasi-in-rem jurisdiction to issue a writ of possession and have the tenant evicted.

Step 4: Default Judgment or Trial

If the tenant fails to answer within seven (7) days after being served, the landlord is entitled to a default judgment, and a writ of possession instanter (meaning as soon as the marshals office can effect it).

If the tenant answers and demands a trial, the matter proceeds to trial. When you arrive at court, you will go directly to the courtroom identified on your notice of hearing. When your eviction case is called, you will approach the bench and the judge will ask you to explain the case. Sometimes, tenants (defendants) don’t even bother to show up, but some do and it’s becoming increasingly popular for tenants to hire attorneys to represent them in eviction cases. The tenant may have no real defense, but the lawyers may work to prolong the eviction as long as possible giving their clients (your tenants) the longest period of time possible (free rent) in your property.

An experienced attorney can advise you on the most expedient course of action. After hearing arguments from both sides, the Judge will issue a Judgment. If the verdict is for the Plaintiff (property owner), the Judgment will typically allow the tenant seven (7) days to vacate the property or appeal the Judgment.

From here, the tenant can do one of three things:
1.         The tenant can vacate the property and return the keys. In which case on the eighth day after the Judgment, you go to the property and change the locks.
2.         The tenant can NOT vacate the property. See “Step 5(a): Writ of Possession” below.
3.         The tenant can NOT vacate the property and file an appeal. See “Step 5(b): Second Trial – Appeal to Superior or State Court” below.

Step 5(a): Writ of Possession

If the tenant has an Eviction Judgment ordering them to vacate and they do not leave, you must file a Writ of Possession with the clerk of court. This is essentially asking the marshal or sheriff to go out to the property and ask the tenant to leave. What actually happens is that official will drive to the property and put a note on the door announcing the date that the tenant will be forcibly set out of the home.

The bad news with writs of possession is that the marshal or sheriff will only help to forcibly remove the tenant. The landlord is personally responsible for removing all of the tenant’s personal items and placing them on the curb. The marshals will not wait indefinitely. In most jurisdictions, the landlord will have roughly one (1) hour to remove everything that is left in the home. If you have a large unit, make sure to hire a moving company or bring plenty of help the day of the set out.

Step 5(b): Appeal to Superior or State Court

A tenant has seven (7) days to appeal a dispossessory judgment (which is why judgments at trial do not typically take effect for seven (7) days). Once an appeal is filed, the case is transferred to the Superior Court or State Court for a trial “de novo.”

Once the matter is transferred to the Superior or State Court, a new trial must be had “de novo.” De Novo is Latin term meaning “starting from the beginning, anew.” In layman’s terms, it is a complete do over. It can often take as many as six months for even experience attorneys to get hearings. Your attorney may be aware of motions that can be filed forcing the tenant to pay rent into the court or vacate until the final hearing.

The entire trial will be redone but, unlike the Magistrate Court, the trial must be conducted in accordance with the Georgia Civil Practice Act and the Rules of Evidence. The tenant may even request a trial by jury. The State and Superior Courts expect everyone to know everything an attorney knows (including not complex trial procedures such as voir dire, the process for selecting a jury) and it can get very complicated. The court will not help property owners or the tenants with legal or procedural questions and are known for not being tolerant of mistakes.

At the conclusion of the trial, the judge or jury will issue a verdict, then the judge will reduce that verdict to a judgment. If the verdict is for the property owner, the judgment will allow the tenant seven (7) days to vacate the property or appeal the judgment, and will order any monies paid into the registry of the court to be disbursed.

From here, the tenant can do one of three things:
1.         The tenant can vacate the property and return the keys. In which case on the eighth day after the judgment, you go to the property and change the locks.
2.         The tenant can NOT vacate the property. See “Step 5(a): Writ of Possession” above.
3.         The tenant can NOT vacate the property and file an appeal. Any appeal would be to the Georgia Court of Appeals. This is exceptionally rare, as the cost of appeal to that Court is burdensomely high for most tenants. Appeals to that court is usually reserved for commercial landlord tenant disputes where tens and hundreds of thousands of damages for rent are at issue. If your case has reached this point, you almost certainly need an attorney.

Select Provisions of Georgia Law Pertaining to Dispossessory Proceedings:

2018 Georgia Code
Title 44 - Property
Chapter 7 - Landlord and Tenant
Article 3 - Dispossessory Proceedings

§ 44-7-50. Demand for possession; procedure upon a tenant's refusal; concurrent issuance of federal lease termination notice

(a) In all cases when a tenant holds possession of lands or tenements over and beyond the term for which they were rented or leased to such tenant or fails to pay the rent when it becomes due and in all cases when lands or tenements are held and occupied by any tenant at will or sufferance, whether under contract of rent or not, when the owner of such lands or tenements desires possession of such lands or tenements, such owner may, individually or by an agent, attorney in fact, or attorney at law, demand the possession of the property so rented, leased, held, or occupied. If the tenant refuses or fails to deliver possession when so demanded, the owner or the agent, attorney at law, or attorney in fact of such owner may immediately go before the judge of the superior court, the judge of the state court, or the clerk or deputy clerk of either court, or the judge or the clerk or deputy clerk of any other court with jurisdiction over the subject matter, or a magistrate in the district where the land lies and make an affidavit under oath to the facts. The affidavit may likewise be made before a notary public.

(b) If issued by a public housing authority, the demand for possession required by subsection (a) of this Code section may be provided concurrently with the federally required notice of lease termination in a separate writing.

2018 Georgia Code
Title 44 - Property
Chapter 7 - Landlord and Tenant
Article 3 - Dispossessory Proceedings

§ 44-7-55. Judgment; writ of possession; landlord's liability for wrongful conduct; distribution of funds paid into court; personal property

(a) If, on the trial of the case, the judgment is against the tenant, judgment shall be entered against the tenant for all rents due and for any other claim relating to the dispute. The court shall issue a writ of possession, both of execution for the judgment amount and a writ to be effective at the expiration of seven days after the date such judgment was entered, except as otherwise provided in Code Section 44-7-56.

(b) If the judgment is for the tenant, he shall be entitled to remain in the premises and the landlord shall be liable for all foreseeable damages shown to have been caused by his wrongful conduct. Any funds remaining in the registry of the court shall be distributed to the parties in accordance with the judgment of the court.

(c) Any writ of possession issued pursuant to this article shall authorize the removal of the tenant or his or her personal property or both from the premises and permit the placement of such personal property on some portion of the landlord's property or on other property as may be designated by the landlord and as may be approved by the executing officer; provided, however, that the landlord shall not be a bailee of such personal property and shall owe no duty to the tenant regarding such personal property. After execution of the writ, such property shall be regarded as abandoned.
2018 Georgia Code
Title 44 - Property
Chapter 7 - Landlord and Tenant
Article 3 - Dispossessory Proceedings

§ 44-7-58. False statements in affidavit or answer; penalty

Anyone who, under oath or affirmation, knowingly and willingly makes a false statement in an affidavit signed pursuant to Code Section 44-7-50 or in an answer filed pursuant to Code Section 44-7-51 shall be guilty of a misdemeanor.

2018 Georgia Code
Title 44 - Property
Chapter 7 - Landlord and Tenant
Article 1 - In General

§ 44-7-14.1. Landlord's duties as to utilities

(a) As used in this Code section, the term "utilities" means heat, light, and water service.

(b) It shall be unlawful for any landlord knowingly and willfully to suspend the furnishing of utilities to a tenant until after the final disposition of any dispossessory proceeding by the landlord against such tenant.

(c) Any person who violates subsection (b) of this Code section shall, upon conviction, be assessed a fine not to exceed $500.00.

Disclaimer: The law is constantly changing and there may be times when the information on this web site will not be current. This information is provided for general informational purposes only and is not intended as legal advice. This information is not a comprehensive treatment of the subject and is not a substitute for advice from an attorney.