WE DO NOT REPRESENT TENANTS. WE REPRESENT LANDLORDS. However, we get numerous inquiries from Tenants regarding their rights when being evicted. So, in order to avoid re-hashing the same issues again and again, we thought we’d take the opportunity to set out some information so that tenants can better understand the process that they’re facing. Keep in mind that all of this information is specific to Georgia, and is very general in nature. If you have any specific advice, or think that this information doesn’t adequately address your issue, you may want to seek individual information from an attorney who represents tenants.
THE SHORT ANSWER
If you don’t want to read this entire page, I’ll go ahead and sum it up for you, and then provide some more explanations below:
In Georgia, unless you have a counterclaim for financial damages, or a defense other than a hardship defense, it is almost never worth it for a tenant to hire an attorney. We hate to say that, and don’t want to discourage business, but if you hire an attorney to lose your hardship defense case, you’ve wasted your money. If you hire an attorney because the landlord didn’t maintain the property, you’re wasting your money. The question we often ask is “Why do you want to stay with this landlord anyway?”. Save your money toward your next deposit, and move on.
Unfortunately, we often have to weigh the legal, theoretical issues of justice against what is practical and cost-effective. While many eviction cases have interesting legal issues for lawyers to work with, the issues most often boil down to “Can you pay? Do you want to stay?”
WHY ARE YOU BEING EVICTED?
NON-PAYMENT OF RENT
If your landlord has filed an eviction against you, alleging that you have failed to pay the rent, or failed to pay it on time, you have very few options. If you have paid, and can prove it (through bank records, receipts, etc…), then you may very well be able to defend the eviction case against you. Additionally, if you can pay the full amount owed, plus late fees and court costs IN FULL (money order or cash, no checks), then you can pay that amount on your court date and have the case against you dismissed. This can only happen once every 12 months, though.
BREACH OF LEASE
If your landlord is alleging that you are breaching the lease in some way (having an un-approved pet, too any people in the house, damage to the property, etc…), then you will either need to prove that you are not breaching the lease, or that the landlord didn’t give you an opportunity to fix, or “cure,” the breach.
WHAT IS YOUR GOAL?
Very often, the tenants that we speak with don’t know what they want to do. If you are having a difficult relationship with your landlord, often it is in everyone’s interest to move to a better situation. Occasionally the landlord will even forgive unpaid rent in exchange for your agreement to move.
If your goal is to stay in the property, then you will have to pay on time, and make sure you are not in breach of the lease. The two questions that judges often ask are “Can you pay? Do you want to stay?”
DEFENSES
Defenses to a dispossessory (eviction) case are fairly limited. Either you paid, and can prove it, or you are paying in full, or you can prove that you have not breached the lease. Any other reactions to the case are simply not defenses.
Often a tenant simply cannot pay the rent. Someone was sick, a car had to be fixed, or someone got laid off from work. These are called “hardship defenses.” With a hardship defense, the tenant is basically saying, “I can’t pay the rent because of some hardship.” This is not a legal defense. Let me be very clear. If your only response to the case is that you can’t pay, you will lose your case. The reason is very simple. If you can’t pay your rent, then the landlord can’t pay the mortgage on the property, which then gets foreclosed, and you have to move anyway. You are simply not allowed to pass your hardship “up the chain,” in that way.
If your only defense is a hardship defense, then simply negotiate with your landlord for a mutually agreeable time for you to move out, and hopefully some agreeable scenario regarding the rent that you owe.
BUT THE LANDLORD DID SOMETHING WRONG, TOO!
Often, when faced with an eviction, tenants begin to voice complaints against the landlord. The toilet stopped working. Judges are hostile to these types of claims. The thinking is that if the property is so bad that you can’t live in it, then you should leave. This would be called “constructive eviction,” and to raise this type of claim, you actually have to show that the condition of the property was so bad that you had to leave, and that you did, in fact, move out.
If the landlord is too intrusive ad harassing, or if the property is poorly maintained, you do not get a right to continue to live in the property for free.
If, though, the landlords actions (or inactions) actually caused you financial or physical harm, or damaged your property, and the damage was not something for which you were required to carry insurance, you can file a “counterclaim” against the landlord for that amount of money. Most of the time, with simple residential evictions, the amount of money in dispute is relatively small.
If you win your counterclaim for damages, and the landlord wins their claim for rent, then those amounts will probably offset, and the judge will simply issue a judgment in favor of one of you for the difference between the two amounts.
WHAT ABOUT MY SECURITY DEPOSIT?
In an eviction, the judge will simply not address the security deposit. That issue is not yet “ripe.” Basically, until you are out, and the landlord has an opportunity to see the condition of the property to determine whether to withhold your security deposit, the judge won’t be able to make a decision. Additionally, if the judge finds that you owe rent, then landlord will be able to withhold your deposit to pay all or a portion of the unpaid rent. Please also read our Evictions page for a little more information about security deposits.
THE BOTTOM LINE
To reiterate what we said above: In Georgia, unless you have a counterclaim for financial damages, or a defense other than a hardship defense, it is almost never worth it for a tenant to hire an attorney. We hate to say that, and don’t want to discourage business, but if you hire an attorney to lose your hardship defense case, you’ve wasted your money. If you hire an attorney because the landlord didn’t maintain the property, you’re wasting your money. The question we often ask is “Why do you want to stay with this landlord anyway?”. Save your money toward your next deposit, and move on.
Unfortunately, we often have to weigh the legal, theoretical issues of justice against what is practical and cost-effective. While many eviction cases have interesting legal issues for lawyers to work with, the issues most often boil down to “Can you pay? Do you want to stay?”.