Landlords owning (or managing) rental-properties in Georgia face a maze of legal options and responsibilities depending on how many properties they own, whether they’re using a Property Manager, the content of their lease, and many other factors. We offer a full range of landlord-centric services in the North Georgia Area, regardless of whether the landlord lives here locally, or across the country.
Whether you need a new lease drafted, an eviction (disposessory) filed, a Corporation or Limited Liability Company formed, or simply referrals to reliable property managers, we can provide the service you need.
We hope you find our website’s information useful. No website can give you all the information you need, but we hope we’re able to give you some basic knowledge so that you can protect yourself as your case moves forward. Simply looking at our website will not create an attorney-client relationship, but we’ll be glad to set a consultation time with you if you have specific questions.
We work in most North Georgia and Metro-Atlanta Counties, including Forsyth, Dawson, Hall, Gwinnett, Barrow, Jackson, and Athens-Clarke County.
In order to run an effective rental business, you need to consider several things: What is in your lease? Do you need a Property Manager? How is your business structured? Do you have employees or independent contractors? We can assist with every facet of your rental business, but since many of our clients and potential clients have questions revolving around evictions (dispossessories), we’ll focus the rest of this page on that issue. If you do have questions about other landlord-tenant issues, please do not hesitate to contact us.
You need one. Let me repeat that; YOU NEED A LEASE! Yes, oral leases are technically valid, but only if the lease is for less than one year, and only if you have credible evidence of what you agreed to. Most of the time, you might be able to prove how much rent was supposed to be, if you can document a payment history, but you won’t be able to prove late fees, pet deposits, security deposits, etc… This cannot be overstated; GET A WRITTEN LEASE!!!
Keep your lease up to date. If it is expiring, and you like your tenant, RENEW IT! Don’t rely on your lease’s automatic conversion to a “month-to-month” agreement, especially if you are experiencing any difficulty with your tenant.
Make sure all residents are listed on your lease, otherwise you might find yourself attempting to evict someone with whom you have no lease agreement.
There are many issues that go into structuring a good lease; Are there pets? Who is maintaining the yard? Who pays the HOA fees? Speak with an attorney to address your specific questions and needs so that your lease can be tailored to fit your specific circumstances.
Make sure you do these inspections, and make sure you have your tenants sign off on the inspection forms so that they can’t later claim that “It was like that when I got here.” Additionally, if you are using a property manager, failure to conduct these inspections can forfeit your claim to keep the security deposit. Give the tenants a copy of the forms, and keep the original in your file.
Make sure you give notice to your tenant if a lease is expiring, and let them know whether you intend to renew, terminate, or change their lease terms.
Evictions in Georgia have several issues which we’ll try to split out as best we can. Leases, Security Deposits, Late Rent, Late Fees, Defenses, Wrongful Eviction, and Property Manager Issues are just a handful of the issues that can arise. We can’t (and won’t try) to cover everything here right now. Our goal is to give you some broad information which will hopefully point you in the right direction. Every case is slightly different. If you’d like to discuss your specific matters, simply contact us and we’ll be glad to talk with you. As far as basics go, let’s start at the beginning:
Whether you’re new to being a landlord or have been around a long time, chances are you’ll have to evict a tenant at some point. The basic steps of evicting a tenant are as follows:
3. Default (if applicable)
4. Hearing (if applicable)
5. the actual Eviction
There is no self-help eviction in Georgia. You cannot simply change the locks and throw your tenant’s belongings out. You need a writ of possession (and law enforcement supervision) to conduct a valid eviction, unless your tenant agrees and moves out on their own.
NOTICE: For the basic scenario where you have a lease, and you are evicting for non-payment of rent, technically there is no minimum notice required, but we typically advise giving the tenant anywhere from 3-10 days to fix the problem. If you have a tenant at sufferance (an example would be a tenant that, after notice of lease expiration has simply stayed in the property without your consent), then no notice is required at all. If you are evicting for a breach other than non-payment of rent (failure to maintain the property, for example), or if you have allowed your tenant to become a tenant-at will, then you could be required to give as much as 60 days notice before filing your dispossessory.
Normally notice is given by certified mail, and can take one of several forms. The most common is the “pay or quit” letter which basically says “pay up or get out.” If they pay, then you will not be able to evict them based on the non-payment issue. Many landlords prefer (and we recommend) a “pay and quit” letter which basically says “Get out, and by the way you also owe me X number of dollars.” If you are not having issue with payment, then you must notify the tenant of the breach (our example is failure to maintain the property), and give them a reasonable opportunity (normally 30 days) to cure, or fix, the problem.
FILING / SERVICE: Once you have given appropriate notice to your tenant, you will simply to to the Court (typically the Magistrate or State Court) in the County where your rental property is located. Most Courts will have forms for you to fill out which will allow you to ask for unpaid rent, damages, and the “writ of possession.” The writ of possession is the Court Order actually allows you to take back possession of your property. Once you have filled out the form, the Clerk will ask you if everything you wrote down is true. Since you presumably have not been untruthful, you simply answer “yes.” The Clerk will require a filing fee and a service fee. Filing fees average around $150, depending on which County you are filing with and how many tenants are being evicted. This is the cost of getting your complaint into the Court system. The service fee is likely between $25 and $50 per tenant being served. This fee is used to pay the Sheriff or Marshall to take a copy of the dispossessory complaint to your tenant, which is called “service of process.” Georgia law is very technical when it comes to “service of process.” This is how a Defendant (your tenant) gets notice that they are being sued, and YOU CANNOT SERVE THE TENANT YOURSELF. Yes, a dispossessory is a lawsuit. You are suing to get back the property you own, and probably to recover back rent as well. While the form at the courthouse will work for most residential evictions, if you feel your particular circumstances are more complex, or that you need additional protection – if, for instance, you own personal property in your rental unit such as refrigerators or televisions – you should consult with an attorney regarding applying for a “distress warrant” along with your eviction. Again, this is beyond what most residential evictions require and is therefore not covered in this guide. Make sure you take a copy of your lease with you when you go to file the eviction, as you may need to “attach” a copy of the lease to the actual eviction paperwork if the clerk recommends it.
If the Clerk sends the Sheriff or Marshall out to “serve” your tenant, they will either hand the lawsuit to the tenant directly (personal service), or tack a copy on the door and mail another copy to them (tack-and-mail). Tack and mail is very common, and will allow your case to go forward, but if your tenant defaults (does not respond), then you will likely only get the writ of possession, and not a judgment for back rent. If you find yourself in this situation, you may need to speak with an attorney about filing a separate “suit for rent.
DEFAULT JUDGMENT: If, after being “served” with the eviction, your tenant does not file a response (or answer) with the clerk for 7 days, then they have “defaulted” in the eviction case. (technically they can “re-open” the case for an additional 7 days, so we advise people to wait 14 days before seeking a default judgment) If they answer, but fail to appear at the scheduled hearing date, this can also be a default. Assuming you are seeking payment of back rent and possession of your property, a default by your tenant may entitle you to one or both of these things.
Regardless of whether service was personal or by tack-and-mail, if your tenant defaults, whether by failure to respond or by failure to appear, then you are entitled to your writ of possession. You simply need to go to the clerk’s office, pay another fee (normally starting at $25) to apply for your writ of possession. Take this writ of possession (once you have it) to the Sheriff or Marshall to schedule the eviction. If the tenant fails to appear for the hearing, the judge may simply issue a writ to you right on the spot, instanter, rather than making you go back to the clerk’s office.
If your tenant was served personally, then you may be entitled to a default judgment for back rent, even if they fail to file a response. If they were served by tack-and-mail, and file a response, but fail to show up for the hearing, you may be entitled to a judgment for back rent. If, however, service was by tack-and-mail, and the tenant does not file a response, the Court will likely not give you a judgment for back rent.
We’ll talk a little bit more in a minute about judgments.
HEARING: If your tenant responds to your lawsuit, the Court will set a hearing, normally within a week or two. In the meantime, the clock continues to run on how much back rent they owe you. So now you show up to Court on your Court date. There will be dozens of other landlords and tenants there, and all of your cases are “in line” to be heard by the judge that day. The Judge will conduct a roll call and will also make preliminary announcements. This may take a while. Plan on being there all day.
You will be given a settlement opportunity. This means that you will have the chance to talk to your tenant (sometimes the Court will even provide a mediator) in an effort to resolve the case. If your tenant can pay you part of the money, or will consent to the judgment for back rent, then there is little or no need to have the full hearing; simply use the Court’s consent judgment or dismissal forms and you’ll be able to leave much sooner. The factors usually up for discussion during a settlement negotiation or mediation are 1. Can the tenant pay, and how much? and 2. If they pay, can they stay? When considering settlement keep the following in mind: A judgment for rent is a piece of paper signed by a judge that says the tenant owes you money. Well, your lease is also a piece of paper that says that your tenant owes you money, and you see how well that worked out. A judgment will let you garnish wages (if they have a steady job), or a bank account (if they have one), or file liens against their property (if they actually own anything). As the saying goes, “you can’t get blood from a rock.” So, when deciding whether or not to accept a settlement offer, keep in mind that $500 in your hand right now is likely worth a whole lot more than a judgment for $1,000.
The basic benefits of settlement:
1. You might actually get some of your money, rather than merely a judgment.
2. You don’t have to wait around at the courthouse for hours until the judge finally reaches your case.
3. You are entitled to your writ of possession at whatever time you agreed to (the judge will likely make you wait at least 7 days before getting your writ.)
4. If your tenant is willing, you can agree to a judgment, less whatever is paid, which you can still use for garnishments, liens, etc…
If you do not reach an agreement with your tenant, then the Court will hold a hearing. Basically, you tell the Judge why the tenant should be evicted, and how much you are owed, and show the judge any evidence you have. Then your tenant gets the chance to defend himself. You will have some preview of what the tenant’s arguments are if they filed an answer. If their argument is “I can’t pay right now because _________ has happened, and I’m short on cash,” then they have merely asserted a “hardship defense” which, though certainly sympathetic, is not a legal defense at all. The fact that they have experienced something unfortunate does not mean you have to give them a free place to live. If the tenant has had to make repairs to the property and has deducted that amount from rent, then you might need to be a little more concerned, but only if they had previously provided notice to you of their intent to do so.
Normally, for then tenant to win, they will have to show that they paid rent. Once per year, though, the tenant is allowed to come to court, pay you all owed back rent, late fees, and court costs, and have the dispossessory dismissed. I have never seen this happen, because it requires that the tenant have cash or certified funds for the entire amount when they show up in court.
THE ACTUAL EVICTION: Once you have won, either at the hearing or by default or settlement, you will need to get your writ of possession. If you won at the hearing, the judge has most likely given the tenant 7 days before the writ of possession gets issued. So, you’ll have to come back to the Courthouse to pick up the Writ. You’ll have to pay the writ application fee ($25-$50, usually). Next you’ll need to contact the local Sheriff or Marshall (the clerk will tell you which) to schedule the eviction. Many jurisdictions have a backlog of eviction dates, so be prepared to wait a couple of weeks. The Sheriff or Marshall will likely also charge $25-$50 to oversee the eviction. The Sheriff IS NOT your moving company. They are there to make sure that 1. Your angry tenant doesn’t attack you, and 2. That you aren’t doing anything malicious with the tenant’s belongings. Bring enough help, or hire a moving company, so that you can have the property emptied out within an hour or two. If your tenant has already moved out, then don’t bother with the Sheriff, simply go in and change the locks on your property. If you have already made the appointment with them, make sure you call and cancel.
Security deposits are not rent. They do not belong to you. They belong to your tenant. If the property has been damaged, provide notice of this to your tenant, give them an opportunity to respond, and go from there. Sometimes the security deposit may be used (after you get a judgment) to offset unpaid rent, but you have to get the judgment, or the agreement of your tenant, before you do so. If you are using a property manager, and screw up the handling of the security deposit, the tenant can sue you for TRIPLE the amount of the security deposit. The same holds true if you are not using a property manager but have 10 or more rental units. Don’t assume that you can simply get away with a slack handling of security deposits because there are tenants out there (and lawyers) who like nothing more than suing landlords over security deposit violations. If you have questions about how to handle a security deposit situation, please contact our office for assistance.