Overview of Georgia Eviction Laws
Evictions in Georgia are filed pursuant to O.C.G.A 44-7-50 et seq. Evictions may be commenced upon the following grounds:
- Failure to Pay Rent
- Noncompliance With the Lease, including destruction and illegal use
- Failure to Maintain Premises/Materially Affect Health and Safety
- Commission of a Crime
- Damage , Theft or Larceny
- Unpaid Respective Shares in an Apartment
- Going Out Of Business Sale (For Lease of Retail Space)
- Personal Property of Tenants Left After Abandonment (In Favor of the Landlord)
- Lease Provision
- Ground Rent Not Paid (In Favor of the ground lease holder)
- Assignment or Subletting Forbid By Lease (In Favor of Person Who Has A Right To Vacate)
- Tenancy by the Entirety (In Favor of the Life Tenant)
- Holding Over After Termination Or Expiration Of Lease (Holds at sufferance)
- Holding Over After Demand For Rent or Notice
- Tenancy In Common (In Favor of the Life Tenant)
- Hold Over After Expiration Of The Lease (Hold Over Tenancy)
- Forfeiture (In Favor of The Remainderman)
- Abandonment (In Favor of The Landlord)
- Hold Over After Expiration Or Termination Of Lease (Hold Over Tenancy Hold Sufferance)
- Hold Over After Expiration Or Termination Of Lease By Eviction (Hold Over Tenancy Hold Sufferance)
- Failure To Deliver Possession When Due (In Favor of the Landlord)
Each of these grounds has specific statutory provisions that detail pertinent facts and legal procedures.
For example, the failure to pay rent eviction has the following requirements:
Evicting a Family Member: Legal Grounds
Evicting a family member may prove even more challenging than evicting a non-relative. Georgia’s landlord-tenant law does not define "family member." Courts generally use a mixed objective and subjective test to determine whether residents are family members. Under this test, the criteria includes:
If any two tests listed above are met, the persons are presumptively family. However, as with a cohabitating couple, the court may look at the entire constellation of facts, the most important (however not exclusive) factors being the economic connection, the person’s expectancies of inheritance, and how the person and tenant present the situation to the public. Instances where a housing provider cannot evict a family member include:
Even where Georgia law provides an exception to eviction, landlords often disregard the law and attempt to evict nonpaying family members. While such evictions are rarely successful, the attempts are highly disruptive and can necessitate a considerable amount of time and money to recover from financially and emotionally.
How to Start the Eviction Process
Georgia Eviction Laws prescribe a specific procedure known as "Notice" when terminating tenancy of a family member who is also a tenant under Georgia’s Landlord/Tenant laws. In contrast to a non-tenant family member living in the rental property, if the family member is also a tenant (namely, a party listed on the lease as a tenant) the procedure requires specific potential extra steps. "Notice" requires that the landlord first provide written notice to the tenant/family member.
The Notice must be:
• in writing,
• signed by the landlord or an agent of the landlord (such as a property manager etc), and
• delivered to the tenant personally OR by certified mail at tenant’s residence or by overnight commercial delivery.
In the case of a family member, the Notice must also state that the person is a "family member" of the landlord. (See OCGA 44-7-7)
The most common period for the notice to be provided is 60-days, but depends on the terms of the lease. If the lease agreement states that either party may terminate the agreement with 60-days notice, then that is the term that will apply. If the lease agreement does not address the term, and in the absence of any other applicable agreement, the term will be 30 days. Whatever the term, the landlord has to provide 60 days’ Notice (if the lease allows it) or 30 days’ Notice (if there is no specific provision in the lease or the lease has no end date), and the family member must vacate within that period.
The family member can only remain in the property after the Notice period has expired if the tenant/family member chooses to renew the Agreement, and the landlord accepts it.
If the tenant/family member does not leave the rental property after the 30 or 60-day term, the landlord can file an eviction lawsuit, known as ‘dispossessory’ in Georgia. Once the Complaint is filed, it must be served on the tenant/family member by a Deputy Sheriff of the County where the tenant/family member is located.
There may be additional steps that a landlord may have to take, such as filing an Affidavit with the Court stating under penalty of perjury that the rent has not been paid and that the rental property is not federally subsidized housing and/or does not fall under another special category of public housing.
The Importance of Legal Notice
Failure to properly deliver the notice required by law for summary process cases can bar the eviction. Basically, the law requires that you distinguish between the various family members living in the property, and provide notice to them individually. The statutory notice required by law for dispossessory actions is a demand for rent to be paid/possession to be surrendered, not a termination letter or a cure letter. This is an important distinction. If the tenant does not pay rent or cure the default in 7 days, then you can sometime in the 8th day dispose of the tenant. You CANNOT do this without first providing the proper notice as discussed earlier. Failure to do so will likely result in your having to start all over again with 60 days notice.
Defenses Family Members May Raise
While you can begin the eviction process against a family member, it is also possible that they will come up with defenses to stop the eviction process. Here are the most common defenses they might use:
Claiming in writing that the interest of the parties has been resolved.
Claiming that the individual has no legal rights to the property anymore because they never contributed to the mortgage payments, taxes, or repairs.
Claiming that there was no actual eviction , and that they gave permission for a child or grandchild to live at the property.
Many family members illegally stay in a property even after they are asked to leave. While they might be residing in your property, they will still try to fight an eviction. It is important to be prepared for any and all possibilities when it comes to an eviction case. They may present some evidence on their behalf attempting to indicate that the circumstances have changed or that they deserve to remain in the home. Even if the person is a child or grandchild, they still have the right to protect themselves in the eviction.
Use of Mediation and ADR (Alternate Dispute Resolution)
One of the most common ways to end a tenancy under Georgia law is by simply talking things out with your trespassing family member. In fact, many complaints that are brought before a judge in an unlawful detainer action (eviction case) are resolved when tenants and property owners connect immediately prior to or during the tenant’s first appearance. This is good news because once a court date is assigned to an unlawful detainer action, your family member has to be evicted even if everyone has decided to work it out.
In the initial courtroom phase, a court coordinator will explain all the rights of the landlord and the tenant, and give time for the parties to speak and discover whether or not they can come to terms so as to avoid going forward. Even if parties are not unanimous at this point, sometimes a temporary agreement can simply delay the move-out date and assure everyone that the end is coming. Once a final date is set, there can be no reversing a court order.
In order to prevent something as serious as an eviction proceeding, the parties might agree to meet with a neutral third-party mediator to negotiate a solution. Mediation is available for all unlawful detainer actions, though not every courthouse will administer a mediation program. Other alternative dispute resolution channels include the use of a settlement officer, or specialized "Early Resolution" dockets set up by some courts for the purpose of settling cases.
Regardless of how you get there, the outcome is often the same: a pre-litigation mediated resolution to the dispute between landlord and tenant. This is a positive development, because as previously mentioned, essentially all evictions are successful, and both judicial and psychological resources are being utilized to put the family out of the house. The more preparation landlords can do as far as "priming" family members for an amicable discussion (versus a shouting match in a courtroom), the better the opportunity to possibly resolve the dispute through straightforward discussion.
Completing the Eviction and Moving Out
In circumstances when a case goes to judgment, the court will usually issue a judgment that the family member must move out of the property. Depending on the situation, a family member may be granted the opportunity to peacefully move out and on to the next place of residence. A specific timeframe will be given, then both parties will have to "evict" the family member if he/she has not already vacated the premises.
The process of conducting an eviction may vary by jurisdiction, but in DeKalb County, a judgment of possession terminates the tenant’s (family member’s) right to remain in the property, but does not authorize the physical removal of the tenant: this would be handled separately. If the judgment is not voluntarily complied with within 60 days, the landlord can go back for a writ of possession which then gives the sheriff the authority to remove the family member from the property and allow the owner to reclaim full possession of the property.
If a Judgment of Possession is entered in most other counties in the State of Georgia, a Writ of Possession must be obtained within 30 days of a judgment being entered. Once the Writ of Possession is issued, however, it is often held at the courthouse for 7 days to allow for the family member to vacate the premises before the sheriff removes them from the property.
When requesting a Writ, the owner will pay a fee (typically around $5) and provide the Writ and an additional service fee. Taking the Writ back to the court clerk, the clerk will sign it and return it to the landlord who takes it to the sheriff to be served at the property. On the day of eviction, the sheriff will have discretion as to the time and the tools he will use to enforce the Writ, although they are generally enforced very early in the morning. It is not uncommon for a landlord to get an interim possession order and then allow the family member to remain in the property for some period of time (to try to peacefully negotiate a departure from the property). While vacating the property is the goal, the landlord typically allows the family member a few hours to gather belongings prior to actual removal from the property.
Other Issues and Family Member Rights
Upon the completion of the eviction process, both landlords and the evicted family member have certain rights and obligations. For the landlord, the process for re-entering the unit is usually straightforward. First, the landlord needs to change the locks on the door of the unit that was subject to the eviction. The locks need to be changed in order to prevent the evicted family member from re-entering the premises without the landlord’s permission. Moreover, it is important to note that the removal of personal property from the unit can only occur after a legal process is completed by the landlord. If the landlord disposes of the property held by the family member before a legal process is run, the landlord can be liable for damages. In Georgia , this legal process requires that the landlord obtain an Unlawful Detainer Writ. This also requires that the sheriff of the county where the rental unit is located be summoned in order to remove all of the items found in the unit. The items can be auctioned or stored by the sheriff while the family members have the opportunity to come and retrieve them if they so choose. For an evicted family member, the best way to proceed after an eviction is to leave the property as soon as possible in order to avoid further conflicts. If there are disputes about the trial process or the validity of the eviction, the evicted family member should strongly consider hiring an attorney to file a motion to stay the judgment of possession. If the court grants this stay, the family member will be able to remain in the unit until the trial is over.