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Chapter 10 - Georgia Residential Landlord-Tenant Act
At the completion of this chapter, students will be able to do the following:
1) List the security deposit requirements under the Act.
10.1 Article 1 - In General
The official name of the law we are discussing is Georgia Code Title 44 – Property Chapter 7, Landlord and Tenant. It is comprised of five Articles. In the following chapter we’ll be taking a close look at the first four Articles. In the upcoming lessons we’ll be looking at Article 2, which deals with security deposits, Article 3, which is titled “Dispossessory Proceedings,” and regulates the eviction process, and finally Article 4, which is titled “Distress Warrants” and also relates to the eviction process. In case you’re curious, Article 5 is titled “Croppers” and applies to the specific relationship between a cropper and a landlord. In today’s lesson, we will be focused on Article 1, which is titled, “In General” and covers just about all the other aspects of the relationship between a landlord and tenant not covered in the subsequent articles. There are 23 sections to this article, so let’s dive right in.
With 23 sections there is a lot of ground to cover in this lesson, but first a quick note on terminology and referring to each section. The proper way to refer to each section is Georgia Code, then the title number, a hyphen, then the Chapter number, then another hyphen and finally the section number. All of the Section’s in this chapter are from Title 44, Chapter 7. The fastest way to correctly refer to the first Section in writing that we’ll cover in today’s lesson would be GA Code 44 dash 7 dash 1, and the first Section in our next lesson would be written as GA Code 44 dash 7 dash 30. For the purpose of this lesson, we’ll just be discussing each section in order, but each Section can be looked up for later reference by using the Title and Chapter, and remember, all of the currently discussed sections are part of Article 1.
Section 1 of the “In General” Article defines the relationship of landlord and tenant. It states that the relationship is created when an owner of real estate gives another person, “the right simply to possess and enjoy the use of such real estate.” This language is standard rental speak, and operates on the same principle of “quiet enjoyment.” The first part of Section 1 goes on to state that the relationship can be created for a fixed amount of time, or that it can be ended when the landlord chooses. It also states that the estate remains the property of the landlord, and the tenant cannot transfer it to someone else without the landlord’s consent. Section 1 has a second part which restates that in any lease that is for less than a fixed period of 5 years, the property remains the landlord’s unless there is a contract stipulating otherwise.
Section 2 takes a look at a Parol Contract, which is a kind of contract that can be used to establish the landlord-tenant relationship for any time that is not longer than one year. It goes on to state several things which the contract must honor, primarily rules and laws which are covered in subsequent sections. It also has a provision regarding contractual obligations for attorney’s fees, and states that a landlord may not make a tenant contractually responsible for attorney’s fees unless there is a stipulation stating the landlord is also responsible for any attorney’s fees related to the landlord’s breaking the rental agreement.
Section 3 is especially important for real estate agents. It requires that at the start of their tenancy, a tenant must be provided with both the legal name and address of the registered owner of the property as well as the person who manages the property. It also requires the landlord to let the tenant know of a change of address or ownership within 30 days of the change either in-writing or by posting a notice in a conspicuous place. You’ll want to place close attention to the second part of Section 3, as it directly affects anyone who acts as an agent. If you act on a landlord’s behalf and fail to comply with Section 3, you are then required to act as the landlord’s agent in a variety of duties, including collecting rent; so, make certain to always provide tenants entering into rental agreements with this information!
Section 4 allows local government to establish ordinances governing security standards and fire safety measures. Section 5 is about disputes regarding rent and states that it is generally implied that the defendant owes rent when occupying the property.
Sections 6, 7 and 8 are in regards to Tenancy at Will, which is what happens when there is no specific timeframe laid out for the end of the tenancy. To end a Tenancy at Will, 60 days notice is required of the landlord, and 30 days notice from the tenant. Section 8 states that the tenant is entitled to any crops they have planted prior to notice being given or end to a lease due to other circumstances such as a sale.
Section 9 states that the tenant cannot question the landlord’s title while they are occupying the property in accordance with the rental agreement.
Section 10 requires the tenant to return possession of the property to the landlord at the end of their tenancy.
Section 11 is about the rights of tenants, and states they may only use the property for quiet enjoyment and not make changes to permanent fixtures or cut down trees. It does state they may use dead timber for firewood and pasturage for cattle.
Section 12 is about trade fixtures which are removable personal property. It allows the tenant to erect and then remove and take any trade fixtures they have erected. After the tenancy’s possession has ended, any remaining trade fixtures are considered abandoned and are the landlord’s property.
Section 13 states that it is the landlord’s duty to keep the property maintained and in good repair.
Section 14, called Tort Liability, releases the landlord from damages resulting from third party negligence, or the fault of the tenant, so long as they are not the result of faulty construction or negligence of maintenance or repairs.
There is a Section between 14 and 15, which would be referred to as Georgia Code, 44-7-14.1. This section defines utilities as heat, light and water service and states that it is illegal for a landlord to knowingly disrupt these services while the tenant has the property. Additionally, there is a penalty of up to $500 for doing so.
Section 15 says that destruction of a property from things that are not the fault of the landlord, like a fire, does not release the obligation of rent.
Section 16 states that interest is accrued from rent that remains contractually owed.
Section 17 concerns agreements where crops are agreed as part of the rent, and says they will act as payment.
Section 18 nullifies any rental agreement in which the property is being used for prostitution or as a “tourist camp.” A tourist camp is defined as any structure, whether permanent or temporary that is being used as “dwelling or sleeping quarters for pay.” Remember that this law was written in 2017, and as it could have applications in the future with businesses such as AirBnB and VRBO, it’s important to keep abreast of any judgments, whether local or statewide that could have consequences, especially in regards to laws like this one that can nullify a lease.
Section 19 is an important one for landlord rights. It restricts local governments from enacting regulations on the rent that landlords are allowed to charge. Local governments may make restrictions, or affordable housing, with property that they own, but this Section severely restricts the ability of local governments to make rent restrictions.
Section 20 requires landlords or their agents to notify a tenant about any flooding that might be likely to occur before the tenant enters into an agreement. This section has a very specific requirement in that, if in the five years prior to the date of the beginning of the lease, the property which the tenant is leasing has been damaged by flooding at least three times, then they are required to notify the tenant before signing the lease. If the landlord fails to give this notice then they are responsible for damages which the tenant has from flooding during their lease.
Section 21 is the one that most directly affects you as a real estate agent. It makes a written brokerage agreement a binding one, so long as all of the terms are followed. You will want to make yourself familiar with this section, as it enforces rights in the brokerage agreement through many exceptions, including sale, assignment and dispossession of the lease so long as the broker files notice with the county clerk with a specific form that is included in the section. You can read the entire section at Georgia Code 44-7-21.
And the final Section of this lesson, Section 22, concerns a variety of reasons why an active service member may cancel their lease early with 30 days notice.
In the next lesson, we will cover Article 2 of the Act.
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10.2 Article 2 - Security Deposits
We begin with Title 44, Chapter 7, Section 30, which is titled Definitions, and has three very important terms you'll want to have a clear understanding of. First up is "nonrefundable fee" which refers to money that the tenant gives the landlord, and it is spelled out that it is a non-refundable fee within the rental agreement. The next definition is "residential rental agreement," which is defined as any contract or lease that allows for the rental or use of real property as a place to live. The final definition in this section is "security deposit." It is as you understand the term, in that it is defined as any money or security which the tenant gives the landlord as part of their rental agreement. It also specifies that a security deposit is inclusive of any damage deposits, advance rent payments or pet deposits. Finally, it specifies that the security deposit does not include nonrefundable fees or money to be paid for utilities or rent.
The next section, Section 31, regulates how security deposits are supposed to be kept, and is titled, "placement of security deposits in trust." This section states that when a landlord, or landlord's agent is holding a security deposit, they are required to put that money into a devoted escrow account, to be held in trust for the tenant, and that the tenant must be notified in writing as to where the account is. This means that a landlord is always supposed to put the security deposit into a bank account just for safekeeping. The only exception to this is in regards to the next section.
Section 32 allows for an alternative to holding a security deposit in escrow. Instead, a landlord may withdraw a surety bond. In order to do this as an alternative for maintaining an escrow account, they must register and pay a fee with the local county court. The surety bond must be enough to either cover the full amount of security deposits or $50,000. In other words, if a landlord does not want to open an escrow account, they'll need to both purchase and register with the county a kind of insurance to make certain they'll be able to pay back the tenants' security deposits.
Section 33 takes a look at the process of dealing with damages and defects in the apartment. There are three phases to this section. First is that prior to occupancy, the landlord is required to give the tenant a full list of damages and defects, and the tenant must be given time to inspect the apartment to see if they agree to the list. Upon agreement, both parties are supposed to sign the list. The next phase is required to take place within 3 days of a tenants' moving out, and once again the landlord or their agent is required to inspect the property and make a list of any damages and itemized costs they plan to deduct from the security deposit. The tenant has the right to inspect the property for 5 business days after moving out. Once again, both parties sign upon agreement. The tenant is allowed to take the landlord to court to recover security damages by stating dissent to specific items.
Section 34 goes through the return of the security deposit, as well as complications that can arise. Except for exceptions, the landlord is required to return the full security deposit within 30 days of the tenant moving out. It also stipulates that none of the security deposit may be kept to cover any damages that come from "normal wear and tear," so long as it's not due to negligence or accident. If the landlord does have valid reasons to keep some of the security deposit, then they are required to provide the tenant with an itemized list of what each deduction from the security deposit is for, and pay the remaining security deposit at the same time they provide the list. The section explicitly states that there is no restriction on the landlord's using the security deposit for unpaid rent, utilities or additional damages.
Section 35 sets out what happens when the landlord fails to comply with the rules governing security deposits. If the landlord doesn't keep the security deposit in an escrow account, or does not notify the tenant of where the account is held, then they forfeit their right to keep any of the security deposit for damages. The final part of section 35 covers landlords who keep a part of a security deposit to which the tenant is entitled within the proper time frame. In those cases, the landlord is required to pay three times the owed amount back to the tenant.
Section 36 is an additional exemption to every regulation regarding security deposits that we have read, which allows landlords with small rental holdings to be exempt from the specific rules regarding security deposits, including the need to have an escrow account. In order to be considered a small enough landlord to be exempt, the landlord must have ten or fewer rental units, and they must be what is referred to as "a natural person," and not for instance an LLC. Additionally, if they have a third party, such as a management company acting on their behalf for things like collecting rent, they will not be exempt from under Section 36.
Finally, Section 37 is concerning military personnel and their families, and discusses the limitations of charges of rent when people need to move because of a station change or active duty.
10.3 Article 3 - Dispossessory Proceedings
Section 49 is titled "writ of possession". In general, a writ of possession is the legal document which a court issues to allow one person or group the legal right to take possession of real property by forcing those in possession out. This is most commonly used in eviction proceedings, but this section is clear that in this case a "writ of possession" is in reference to "any land or other property" being "recovered." Additionally, it states that a writ of possession cannot place any additional burdens on the landlord in recovering their property.
Section 50 has two clauses. The first applies to all landlord-tenant relationships in general, and gives the procedure by which the landlord must begin eviction processes. When a tenant keeps possession of a property past the terms of their lease, or fails to pay rent, even if it is during the term of their lease, then the landlord can tell them to vacate the premises, either directly or through an agent or attorney. If the tenant does not vacate the premises and deliver possession to the landlord then the landlord may swear an affidavit before the appropriate judge or notary public of the facts of the case. The second clause applies only to cases where the landlord is a public housing authority. In that instance, the demand for possession can come at the same time as a notice of lease termination that is federally required.
Section 51 looks at the procedures that come after the affidavit has been given by the landlord. At this point, a copy of the affidavit and a summons goes to the tenant, who is now the defendant in the dispossessory proceedings. If the sheriff cannot serve the tenant, then they may deliver the affidavit and summons to anyone who is residing on the property, and if that fails, they can leave a copy at the property and also send by first class mail. From the day the summons is delivered, the tenant then has 7 days (extra if the seventh day falls on a Saturday, Sunday or legal holiday) to respond to the summons. The tenant can answer in writing or orally, and must make any defense or counterclaim here. The landlord isn't required to be present if the tenant responds orally. The last part of Section 51 concerns tenants who have only been served the affidavit and summons through the mail and having it left at the property. In these cases, if no answer to the summons is received then the court can file a judgment for possession but not for any money owed while the defendant is absent.
Section 52 requires that in instances where the affidavit and summons were filed for non-payment of rent, if the tenant pays all the rent that is allegedly owed, along with all the costs associated with the dispossessory warrant within 7 days, the landlord must accept the rent, and payment acts as a full defense for the tenant. However, the tenant may only use this "full defense" one time in 12 months. If more than one dispossessory proceedings are brought to collect rent against any tenant, then they must pay the full amount within 3 days, or the landlord will be given a writ of possession. Additionally, if the tenant is not under a rental contract, then paying rent that is owed will not stop eviction proceedings but will only be factored into any financial judgments made.
Section 53 takes a look at when the actual writ of possession is filed. If the tenant fails to answer the summons and affidavit then the court can immediately offer a verdict for all rents due and for a writ of possession. If a tenant does answer, then they are entitled to a trial to determine the outcome, they are also entitled to stay on the property until the outcome is determined, but they must pay rent in the meantime, but it will now be done through the court.
Section 54 looks at the court's role in deciding rent and utilities payments, and how the tenant must now pay it through the registry of the court. Any trial that goes on for two weeks or longer will require the tenant to pay through the registry of the court. The tenant is responsible for all utility and rent payments that are expected from the lease and have become due since the dispossessory warrant was served. Section 54 takes a look at several instances when the rent might be in dispute. Either the landlord or the tenant is allowed to provide a rental contract. If there is none, and the amount remains in dispute, the court may take the last rental payment that the landlord accepted, without written objection, as the current rent. The tenant must also pay any amount that they owe under the lease that was owed prior to receiving the dispossessory warrant. The tenant may show any type of receipt that payments have been made. If the amount is in dispute, the court will use the same methods as they did to determine current rent. If the tenant fails to make these payments, then the court will issue a writ of possession to the landlord. Section 54 goes on to say that the money that the tenant pays to the court registry, that is authorized by a rental contract, will be paid to the landlord, so long as the tenant is not making a claim to that money. And disputed funds will remain with the registry until the trial comes to a conclusion regarding those funds, but any amount that is not in dispute will be paid to the landlord immediately.
Section 55 looks at the outcome of the trial. If the tenant is found to be in fault, then a writ of possession is issued. It goes into effect in seven days after it is issued and will both require the tenant to vacate the property, as well as to pay any money that court found owed, either from rent or other claims. If the judgment is in favor of the tenant, then the tenant is allowed to stay on the property, and the landlord is responsible for any costs associated with wrongly having started dispossessory proceedings. Any money that has been paid into the court registry will be distributed to the landlord and tenant based on the judgment of the court. Section 55 concludes with authorizing the landlord who has received a writ of possession to remove the tenant and any personal property. The landlord can remove the personal property to a different property with permission from the court, and after the writ of possession has been given, it is considered abandoned personal property.
Section 56 discusses the use of appeal for a judgment in dispossessory proceedings based on various chapters in Title 5, such as bankruptcy. Both the landlord or the tenant may use this as an appeal provided that they file it within 7 days of the judgment. If the tenant is using this as an appeal, they must pay all rent owed to the Registry of the Court and continue to pay future rent in order to remain in possession of the property.
Section 57 states that the entire article 3 applies to croppers and servants who are in possession of property in exchange for goods and services, but remain on the property after employment has ended.
Section 58 states that any false statements made in the affidavit, by either the landlord or tenant, are considered a misdemeanor.
Finally, Section 59 discusses the removal of transportable housing from the land. If a tenant who has been evicted leaves behind a transportable home, such as a mobile home, after 10 days then the landlord is allowed to have the transportable housing removed from the property at the tenant's expense. There are instructions to do this, including placing a lien on the transportable housing.
10.4 Article 4 - Distress Warrants
Article Four of the Georgia Code Title 44, Chapter 7 is titled Distress Warrants. A distress warrant is a legal document that allows a court officer to take back the property of a tenant if the tenant fails to pay rent. Once again, we will take a look at each individual Section.
The first section is Section 70.
This Section gives the landlord the power to "distrain" immediately if the tenant tries to remove property at the time that they owe rent. Distrain means seizing property because money is owed.
Section 71 explains the start of the process for this. When rent is owed, or the tenant is trying to remove their property, then the landlord must state the facts to the court for a distress warrant.
As we continue through the sections, we find the process for the distress warrant quite similar to that of the Dispossessory Proceedings. In Section 72, once the landlord has given their affidavit, the judge will give a Marshall the right to serve the affidavit and summons to the tenant. In this instance the tenant must respond within 5 and 7 days from being served.
Section 73 gives the tenant the right to pay the full amount of the rent owed, plus the cost of the distress warrant, and have that serve as their full defense in dismissing the case.
Section 74 goes through several possibilities considered the defendant's response. The defendant can answer in writing before the hearing, or they can answer at the hearing orally. Their answer will be added to the affidavit, and could contain any counterclaims and defense. If the tenant does not answer, then the court will find in the landlord's favor, and the affidavit will be entered as fact, and all rent will be owed, without a trial. If the defendant answers, then there will be a trial, and in the meantime the tenant will be able to stay on the property and keep their personal property so long as they comply with Section 75.
Section 75 explains the process of paying rent during the trial period. The tenant must comply with this section in order to maintain possession of the property. First of all, the tenant is required to pay all the rent that they owe at the time that they made their answer to the summons, or they can give receipts for that amount showing it has been paid to the landlord. If the amount of rent is in dispute, then the court will decide the outcome of the dispute.
The tenant will then have to pay all due rent into the registry of the court as it becomes due. Just like with the Dispossessory Proceedings, the amount of rent that is due is based on the rental contract. And if it remains in dispute without a rental contract then the amount will be based on the last payment which the landlord accepted and did not object to in writing. There is an added clause in Section 75, which adds that; money paid through the Dispossessory Proceedings for the same purpose, will satisfy the requirements of the tenant to pay rent for their Distress Warrant.
Section 75 goes on to state that during this process the tenant cannot move, conceal or sell their property unless posting bond, which will be addressed in the next section. Additionally, if the tenant does not pay the court the amount it is determined they owe, then they will lose the right to their property, although they will still be able to fight their case. Section 75 end with a clause about the court's payment to the landlord. The money the tenant pays to the court is to go directly to the landlord, except for any amount that is in dispute.
A tenant who wants unrestricted use of their property while facing a Distress Warrant may post bond. Section 76 sets the guidelines for that process. If the tenant wants to "transfer, move, or convey" their property they will have to get a bond "with good security" for either the amount of the property, or the amount of the rent that is said to be owed, whichever is less.
Section 77 looks at the outcome of the trial.
If the outcome is against the tenant, then the judgment will be in the landlord's favor for any rent owed, damages claimed, and for the Distress Warrant. If the judgment is for the tenant, then they will be allowed to remain on the property. If there are damages caused by the wrongful action of the landlord, then the landlord will have to pay for those damages. The money paid in the court registry will be distributed based on the counterclaims and judgments. Any property seized by the court that belongs to the tentat will be returned to him.
Section 78 states that any decision is subject to appeal, and if the tenant appeals, then they have the right to keep their property through the full process, so long as they comply with Sections 75 and 76.
Section 79 looks at the Execution and Levy of a Distress Warrant. Once a Distress Warrant has been granted, this section gives the Marshall, Sheriff, or Deputy the right to advertise and sell the property. The rules regarding this are the same as for levy and sale under execution, which is the standard way that a Marshall or Sheriff is allowed to sell seized property.
The landlord is paid the money they are owed from a granted Distress Warrant through a lien. Section 80 describes this process. The lien is placed on the property at the time that they make their affidavit, but it does not take precedence before any older lien that has already been placed on the property, with the exception when the property in question is crops.
Section 81 explains that a third person may make a claim on property that has been distrained, and that person will have their own rights to a trial.
The final section of Article 4, and the final section we'll be looking at the Landlord and Tenant Act and how it deals with situations when the property in question is a mobile home. Section 82 states that a mobile home is considered a tenant's personal property, and so is subject to all the laws regarding Distress Warrants. It also defines a "mobile home," with several specific details as well as a "movable or portable dwelling over 32 feet in length and over eight feet wide."
Chapter 10 - Quiz
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