Georgia Eviction Process

Guide to the Eviction Process in Georgia

Eviction in Georgia:

Georgia Eviction Laws

The foundation of the Georgia Landlord Tenant and Eviction Laws are found in the Title 44 Chapter 7 of the Georgia Code. If you are a Georgia Landlord, it is a good idea to review these laws and be familiar with them. Landlords have the option of evicting a tenant who is late in paying rent in Georgia,  Georgia law allows a landlord to evict a tenant for not paying rent on time. You must give the tenant notice that rent is due and the tenant must refuse to pay the rent before you can file an eviction lawsuit with the court.  Tenants can learn what to do if they are being evicted> Tenants Help Pages

Grounds for Eviction in Georgia

In the State of Georgia, a tenant can be evicted for one of three reasons:

• Failure to Pay Rent
• Lease Violations
• Failure to Give Back the Property at the end of the lease term

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Serving the Georgia Eviction Notice

The first step in the Georgia Eviction Process is serving the tenant with an Eviction Notice, called a Demand for Possession or Notice to Quit in Georgia. To evict a tenant for non-payment of rent, for lease violations, or for staying beyond the lease term, the Georgia Code does not give a specific notice period. It simply says that before the landlord can sue the tenant for possession of the property, the landlord must demand that the tenant immediately give up possession. This Demand for Possession is also called a Notice to Quit. It should be in writing and should be delivered to the tenant in a way that the landlord can prove it was actually delivered. If after demand for possession is made, and the tenant has not either surrendered possession or fixed the problem, the landlord must go to the local magistrate court and file a Dispossessory Affidavit.

 

Dispossessory Affidavit

The dispossessory affidavit is a document where the landlord swears under oath the facts of the case, and asks the court to help evict the tenant. The court that handles evictions for the landlord’s property will usually have dispossessory affidavit forms that the landlord can fill out and file. For example the Magistrate Court of Fulton County Georgia has an affidavit available for download on their website. There will be a filing fee associated with it. The affidavit states the name of the landlord and tenant, the reason for the eviction, that the landlord demanded possession of the property and that possession was refused, the amount of rent owed (if applicable). When the dispossessory affidavit is filed with the court, the court will issue what is called a summons.

 

Summons (Dispossessory Warrant)

Upon filing the affidavit the court will prepare a Summons (also called a dispossessory warrant) and direct the local sheriff to deliver the summons to the tenant. The summons will be either (1) hand delivered to the tenant, (2) delivered to an adult who resides at the home with the tenant, or (3) tacked to the door AND sent certified mail. The summons is what tells the tenant that they are being sued for eviction. It gives them 7 days to answer the summons and tells them where to answer it. If the eviction is for non-payment of rent, Georgia law allows the tenant to pay the rent plus late fees and court costs before the 7 days is up, and the case will be dismissed.

 

Default or Trial

If the tenant fails to answer the Summons, which is common, then the landlord wins by default. The court will issue the landlord a Writ of Possession, which will allow the sheriff to physically remove the tenant if necessary (see below). If the tenant answers the summons within the 7 day time period, then the court will set a trial date. While the trial is pending, the landlord can request the court to order the tenant to pay rent into the court registry. At the trial, the landlord needs to present all the evidence on why the tenant should be evicted. The landlord should bring documents and witnesses in order to prove their case. If the court rules for the landlord, a Writ of Possession will be issued. If the landlord has requested a Writ of Possession AND an award for back rent, it is important to note that the court will not issue an award of back rent if the Summons to the tenant was served by tacking it to the door and mailing it to the tenant.

Writ of Possession

The Writ of Possession says that the landlord is legally entitled to possession of the property. It gives the tenant 7 days to move out of the property, or else the sheriff will come over and physically remove them. During this 7 day period, the tenant can file an appeal from the trial court to a higher court. If this happens, the landlord can ask the court to order the tenant to pay rent into the court registry.

 

Georgia laws provide for remarkably swift eviction when a landlord files for dispossessory action. But if this is happening to you, there are some protections built into the law to protect your rights. Here are some questions I am most often asked about the eviction process and how to avoid it:

Q: Exactly what is an eviction and how does it work?

A: In Georgia, the Legislature recognizes that the idea of kicking someone out into the street is a serious one, so the process allows for protection of both landlord and tenant rights.

You should start with the lease agreement between the parties. Most renters don’t read their lease, but they should. It spells out what happens if you fail to follow the terms of the lease, and when the landlord can file for eviction.

I have a friend who is an attorney, and he explains his lease like this: “Everything in this lease is stacked against you — there’s nothing in your favor — and if we find something in your favor, we’ve got take it out. Basically, the whole thing says this: If you don’t pay, you don’t stay.”

Q: So eviction is all about getting the rent paid on time?

A: Yes, the vast majority of evictions are brought about because the rent has not been paid.

Q: Let’s say I can’t pay my rent, but I have a very good reason. Let’s say I lost my job, or I had a serious medical condition, or both.

A: The law is very clear. The landlord’s obligation is to repair, while the tenant’s obligation is to pay rent. Those sound like very unfortunate circumstances that have befallen you, but they are not legally acceptable reasons for failure to pay the rent.

Q: So, are there any legally acceptable reasons for failure to pay rent?

A: Not many. The law recognizes that the owner has to be able to generate income in order to pay the mortgage and the taxes.

One excuse is valid: The courts in Georgia have held that if your landlord has failed to make reasonable repairs to the property on a timely basis, you can employ a “repair and deduct” strategy in which you pay for the repairs yourself and deduct that amount from future rent.

But even that is a risky business, because the landlord can later say he was unaware of the problem, and you may get stuck with the cost of the repair.

Q: Are you saying that once the landlord files for eviction, there is no defense at all?

A: Only one. That defense is payment in full, including rent, late fees, and all court costs up to that moment. If offered, the landlord must accept the rent, but it can only stop an eviction once a year.

Q: Let’s say I can’t pay the rent this month. How fast can all this happen?

A: If your rent is due on the first, you’ll probably get a late letter in a day or two. If you still don’t pay and you don’t contact the landlord, you will probably get a demand notice on the tenth day of the month.

It’s called a Notice to Pay Rent or Quit, and it means that the landlord is about to swear out a dispossessory warrant, seeking to have you evicted by the court for non-payment.

Q: What happens next?

A: Once the dispossessory is filed, the county marshal will deliver a summons to your residence demanding that you answer the charges of non-payment of rent. You have seven calendar days to answer the summons in writing.

If you answer with almost any written response, a court date will be set for a trial of the facts, usually within two weeks of the answer.

Q: Then what happens in court?

A: If you appear on time for your court date, prepare to spend the whole day. There may be hundreds of cases ahead of you, and attorney cases always go first.

Once your case is called, the judge will ask you why you have not paid the rent. Remember — financial hardship is not an excuse. The judge will listen sympathetically, then recommend that the two parties meet with a mediator, perhaps right then and there, to try to work out a payment schedule.

Q: What if the landlord refuses or demands all the money be paid immediately?

A: If the landlord refuses mediation, the judge will very likely rule in his favor, granting him possession of your house or apartment in seven days. Any possessions left inside at that time will be placed at the curb.

Q: All this sounds rather harsh. No one likes the idea of evicting a family into the street. How often does this happen?

A: Believe it or not, the threat of eviction is usually enough to get the tenant to either start paying or move out and find another place to live. Know the landlord would much rather see you move to another place than to have to put your possessions on the street. It’s no fun for anyone.

Q: Is there anything that you can share that will stop an eviction?

A: The only way to stop an eviction dead in its tracks is to file for protection under the federal Bankruptcy Act.

Final piece of advice: If you don’t pay, you don’t stay.

 

 

Evictions Basics

For More In-depth Answers  See the GA Court Manual on How State Court Judges Should Handle Various Landlord Tenant Matters.

1. A landlord cannot start eviction proceedings or demand the tenant leave until rent is past due.
2. Normally, the landlord or landlord’s agent must first make a demand for possession before the tenant
   can be evicted.
3. Before eviction can occur, the landlord must first obtain a dispossessory warrant. A dispossessory warrant is a sworn statement signed by the landlord or his agent that sets forth the reason for the proposed eviction.  The landlord is also required to give the tenant a copy of this warrant, and if this is not possible, must tack the warrant on the tenant’s door.
4. A residential landlord must always use the dispossessory process even if the lease says otherwise. See GA Law 44-7-2(b)(3). Any landlord who evicts you without following these procedures may be guilty of trespass and subject to actual and punitive damages. Messmore v. Roth, 188 Ga.App. 862 (1988); Swift Loan and Finance Co., Inc. v. Duncan, 195 Ga.App. 556 (1990).
5. Once a tenant receives a warrant, the tenant has the option to answer the warrant within seven days. ANY PORTION OF THE RENT NOT IN DISPUTE MUST BE PAID TO THE COURT WHEN THE ANSWER IS FILED. If the tenant fails to answer or does not pay the unpaid rent to the court, the court may issue an order to put the tenant out on the street.  OCGA 44-7-75(a)
6. You cannot be evicted if you are served with a dispossessory warrant/distress warrant and you come
   up with the rent and the cost of the dispossessory warrant within 7 days of being served. See GA Law
   44-7-52, 44-7-73.
7. But, under 44-7-52, the landlord can evict you and refuse your late rent when this is the second time within 12 months that you have been served with such a summons. This is true even if you were short of rent by just a few dollars.

 

The Eviction Process-Being Served With Papers ^[iii]
In Georgia, eviction cases are called dispossessory actions.  These actions begin when the landlord files a dispossessory affidavitin court which states why the landlord should get back possession of the rented property.

The law requires that a copy of the dispossessory affidavit be served to the tenant.  This
gives the tenant notice of the court eviction action and time to respond to it.

The tenant can be served in two ways:

1. Personal Service can be affected by giving the court papers to the tenant in person or by giving such to a person of suitable age who lives with the tenant. Usually personal service is carried out by police officials from the Marshall’s or sheriff’s department.
2. Post & Mail Service involves posting a copy of the eviction notice and court papers on the tenant’s house and also mailing a copy to the tenant. (To comply with the law, the landlord must do both.)

NOTE: If service is done by post & mail and the tenant does not Answer, the tenant can be evicted on the 8th day after service of the papers.  But without personal service, the landlord had no right to ask the court for money from the tenant.  Any attempt to do so is illegal.

For More In-depth Answers  See the GA Court Manual on How State Court Judges Should Handle Various Landlord Tenant Matters.

 

Responding To An Eviction Notice  

Tenants can learn what to do if they are being evicted> Tenants Help Pages

The tenant must ANSWER THE EVICTION PAPERS or lose the right to challenge the eviction in court.  An ANSWER is the tenant’s legal reply to the landlord’s dispossessory affidavit.

When eviction papers have been served, the tenant has only 7 days to file his answer with the court.  The last day to Answer should be written on the eviction papers served on the tenant.  Any tenant who does not file an Answer within the 7 day period can be evicted on the 8th day.  Excuses for being tardy don’t count here.

It costs nothing for the tenant to file his answer with the court and the answer does not have to be in writing.  All the tenant needs to do is go to the office of the clerk of the court named on the dispossessory affidavit and have the clerk write on the eviction court papers the tenant’s DEFENSES (reasons why the eviction is unjust and should be stopped).  The clerk should also list any money claims the tenant wants to bring against the landlord.

Claims of money owed to the tenant arising from the landlord tenant relationship are called COUNTERCLAIMS and must be submitted with the Answer.  Each counterclaim should list the amount of money owed and the reasons why it is owed.

If the clerk refuses to take an answer within 7 days of service, immediately ask the clerk to check with the judge about the tenant’s right to make an answer.

After the answer is filed, the court will set up the case for a hearing before the judge, usually within a week to ten days.  The time depends on the court.  At this time, the tenant is allowed to remain in his apartment until after the hearing.  In fact it is illegal for the landlord to evict the tenant before the judge hears the case.

At the hearing the tenant has the opportunity to tell the judge why he/she should not be evicted.  If the tenant loses, the judge will sign a “writ of possession” and sometimes a separate “judgment” for any money the judge finds the tenant owes.

If no answer is filed, on the 8th day after service of the dispossessory, the landlord can ask the clerk to sign a “writ of possession.”  Then the landlord can check with the clerk on executing the writ.  In most courts, the Marshall or sheriff’s department has a schedule to supervise a physical eviction.  The landlord is responsible for removing the tenant’s property or arranging for another to do so.

The marshal or sheriff may put a notice on the tenant’s door, sometimes called a “24 hour notice”, to let the tenant know that the physical eviction will happen the next day.

At this point the landlord can still settle the case with the tenant and not execute the writ.  The landlord will need to call concerning the date and time for the eviction with law enforcement staff.  Keep in mind that SETTLEMENT CAN BE RISKY FOR THE TENANT BECAUSE THE LANDLORD MAY TAKE THE MONEY AND STILL EVICT THE TENANT.

If both parties decide to settle, the tenant should make sure that the landlord voids the writ.  Both parties should also be clear about whether the tenant will remain on the property.   Get the landlord to spell out these issues in writing.

Landlords and tenants can agree to a move out date and time before the date and time law enforcement will be there to supervise the eviction.  Landlords do not have to do this but such may save them money and time for the physical eviction.

The landlord has no legal obligation to protect the personal property of a former tenant being evicted.  This is another good reason why both parties should make arrangements to let the tenant move out at a particular time.

If there was personal service the landlord can get a court judgment for rent and utilities.  If not paid, the landlord can file a garnishment against the tenant or refer the matter over to a collection agency.  If there was no personal service, the landlord cannot collect money from the court as such is illegal. (May or may not stop the landlord from having a collector ask for the money anyway/ruin your credit) Call landlord hotline to find out.
For More In-depth Answers  See the GA Court Manual on How State Court Judges Should Handle Various Landlord Tenant Matters.

 

Tenant Defenses Against Eviction

Here are some possible defenses to an eviction.  Each of these defenses is situation specific and may not necessarily apply to your circumstances.

DEFENSE #1

THE TENANT DOES NOT OWE ANY/ALL OF THE RENT THE LANDLORD CLAIMS.

DEFENSE #2

THE TENANT PAID RENT WITHIN SEVEN DAYS OF BEING SERVED WITH EVICTION PAPERS.  If the landlord is trying to evict you only for nonpayment of some or all of the rent, you can stop the eviction by offering cash or a money order to the landlord for the rent due PLUS the court cost of the eviction action.  BUT THIS DEFENSE WILL FAIL UNLESS this is the firsttime within 12 months that you have been served with eviction papers.  Under Georgia Law, a tenant late for the first time within a 12 month period has 7 days from the time served to pay all costs. O.C.G.A. §44-7-52, 44-7-73.  

Note: the tenant should always answer an eviction notice in court whether or not the landlord takes the money.  Failure to do so is an invitation for trouble.  Also, it’s best to pay the landlord in certified funds such as a bank check or money order.  Avoid cash.  Keep copies of your bank check or money order so you have proof you tendered the money.

DEFENSE #3

THE LANDLORD DID NOT GIVE THE TENANT ENOUGH TIME TO MOVE OUT.

This defense is invalid when the eviction is based on the

tenant’s failure to pay rent.  In other circumstances:

The landlord is to give the tenant notice of when to move.  The time given may be agreed by the landlord and the tenant, either in writing (a lease for example) or verbally (by talking).

If no time was agreed by the landlord and tenant for the lease to end and a time for notice to move was not agreed; the landlord must give 60 days notice to move. O.C.G.A. Section 44-7-7.

DEFENSE #4

THE LANDLORD DID NOT DEMAND (in writing or in person) THAT THE TENANT MOVE OUT BEFORE FILING IN COURT TO EVICT. O.C.G.A. Section 44-7-50.

DEFENSE #5

THE LANDLORD TOOK THE TENANT’S LATE RENT MONEY AND DID NOT GIVE HIM WRITTEN NOTICE THAT RENT MUST BE PAID ON OR BEFORE A SPECIFIC DATE. (LANDLORDS SHOULD PUT IN WRITING WHEN RENT IS CONSIDERED PAST DUE).

DEFENSE #6

THE LANDLORD WOULD NOT TAKE THE RENT EVEN THOUGH THE TENANT OFFERED IT ON TIME. (Tenants should make copies of the dated check or money order that the landlord refused to cash or present cash to the landlord in front of reliable witnesses).

NOTE: The rights of tenants in evictions are written in Georgia law.  The law is in the Official Code of Georgia Annotated (O.C.G.A.) beginning at Section 44-7-1.  Books of Georgia law can be found in county and law school libraries.

For More In-depth Answers  See the GA Court Manual on How State Court Judges Should Handle Various Landlord Tenant Matters.

 

 

Possible Counterclaims Against The Landlord^[vi]

Here are some claims against the landlord that you may want to file with your answer.

1. THE LANDLORD VIOLATED GEORGIA SECURITY DEPOSIT LAW.O.C.G.A. Sections 44-7-30 through 44-7-36.
2. THE RENT DUE THE LANDLORD SHOULD BE REDUCED BECAUSE THE LANDLORD DID NOT REPAIR THE HOUSE RENTED, AFTER THE TENANT GAVE THE LANDLORD NOTICE OF THE REPAIRS NEEDED.

The tenant may claim other money besides reduced rent.  In residential housing situations, the landlord has a legal duty to make repairs even if the lease says otherwise. (O.C.G.A. Sections 44-7-2, 44-7-13, 44-7-14).

3. THE LANDLORD HAS VIOLATED THE RIGHT OF THE TENANT TO USE THE PROPERTY RENTED: if the landlord evicted the tenant without going to court; locked the tenant out of the house; or turned off water, electricity or gas; or did something similar. (O.C.G.A. Sections 44-7-1, 44-7-11, 51-9-1.)

Note a landlord who cuts off utilities to evict can be fined up to $500.00 (O.C.G.A. Sections
44-7-14.1.). For other money claims against the landlord See
         The Basics-What The Landlord Must Do First.