State of Georgia
Landlord Tenant Law
§44-7-1
(a) The relationship of landlord and tenant is created when the
owner of real estate grants to another person, who accepts such
grant, the right simply to possess and enjoy the use of such real
estate either for a fixed time or at the will of the grantor. In
such a case, no estate passes out of the landlord and the tenant has
only a usufruct which may not be conveyed except by the landlord's
consent and which is not subject to levy and sale.
(b) All renting or leasing of real estate for a period of
time less than five years shall be held to convey only the right to
possess and enjoy such real estate, to pass no estate out of the
landlord, and to give only the usufruct unless the contrary is
agreed upon by the parties to the contract and is so stated in the
contract.
§44-7-2
(a) Contracts creating the relationship of landlord and tenant
for any time not exceeding one year may be by parol.
(b) In any contract, lease, license agreement, or similar
agreement, oral or written, for the use or rental of real property
as a dwelling place, a landlord or a tenant may not waive, assign,
transfer, or otherwise avoid any of the rights, duties, or remedies
contained in the following provisions of law:
(1) Code Section 44-7-13, relating to the duties of a
landlord as to repairs and improvements;
(2) Code Section 44-7-14, relating to the liability of a
landlord for failure to repair;
(3) Ordinances adopted pursuant to Code Section 36-61-11;
(4) Article 3 of this chapter, relating to proceedings
against tenants holding over;
(5) Article 4 of this chapter, relating to distress warrants;
(6) Article 2 of this chapter, relating to security deposits;
and
(7) Any applicable provision of Chapter 11 of Title 9 which
has not been superseded by this chapter.
(c) A provision for the payment by the tenant of the
attorney's fees of the landlord upon the breach of a rental
agreement by the tenant, which provision is contained in a contract,
lease, license agreement, or similar agreement, oral or written, for
the use or rental of real property as a dwelling place shall be void
unless the provision also provides for the payment by the landlord
of the attorney's fees of the tenant upon the breach of the rental
agreement by the landlord.
§44-7-3
(a) At or before the commencement of a tenancy, the landlord or
an agent or other person authorized to enter into a rental agreement
on behalf of the landlord shall disclose to the tenant in writing
the names and addresses of the following persons:
(1) The owner of record of the premises or a person
authorized to act for and on behalf of the owner for the purposes of
serving of process and receiving and receipting for demands and
notice; and
(2) The person authorized to manage the premises. In the
event of a change in any of the names and addresses required to be
contained in such statement, the landlord shall advise each tenant
of the change within 30 days after the change either in writing or
by posting a notice of the change in a conspicuous place.
(b) A person who enters into a rental agreement on behalf of
an owner or a landlord or both and who fails to comply with the
disclosure requirements in paragraphs (1) and (2) of subsection (a)of
this Code section becomes an agent of the owner or the landlord or
both for serving of process and receiving and receipting for notices
and demands; for performing the obligations of the landlord under
this chapter; and for expending or making available, for the purpose
of fulfilling such obligations, all rent collected from the
premises.
§44-7-4
(a) Municipalities and counties may establish by local ordinance
minimum security standards not in conflict with applicable fire
codes to prevent the unauthorized entry of premises occupied by a
tenant as a dwelling place and may require landlords to comply with
such standards.
(b) This Code section shall be cumulative to and shall not
prohibit the enactment of other general and local laws, rules and
regulations of state or local agencies, and local ordinances on this
subject.
§44-7-5
When, in an action for rent, title is shown in the plaintiff and
occupation by the defendant is proved, an obligation to pay rent is
generally implied. However, if the entry of the defendant on the
premises was not under the plaintiff or if the possession of the
defendant is adverse to the plaintiff, no such implication
arises.
§44-7-6
Where no time is specified for the termination of a tenancy, the
law construes it to be a tenancy at will.
§44-7-7
Sixty days' notice from the landlord or 30 days' notice from the
tenant is necessary to terminate a tenancy at will.
§44-7-8
The tenant at will is entitled to his emblements if the crop is
sowed or planted before the landlord gives him notice of termination
of the tenancy, if the tenancy is terminated by the judicial sale of
the estate by the landlord or by death of the landlord or tenant, or
if for any other cause the tenancy is suddenly terminated.
§44-7-9
The tenant may not dispute his landlord's title or attorn to
another claimant while he is in actual physical occupation, while he
is performing any active or passive act or taking any position
whereby he expressly or impliedly recognizes his landlord's title,
or while he is taking any position that is inconsistent with the
position that the landlord's title is defective.
§44-7-10
The tenant shall deliver possession to the landlord at the
expiration of his term; and, if he fails or refuses to do so, a
summary remedy pursuant to Article 3 of this chapter is given to the
landlord.
§44-7-11
The tenant has no rights beyond the use of the land and
tenements rented to him and such privileges as are necessary for the
enjoyment of his use. He may not cut or destroy growing trees,
remove permanent fixtures, or otherwise injure the property. He may
use dead or fallen timber for firewood and the pasturage for his
cattle.
§44-7-12
During the term of his tenancy or any continuation thereof or
while he is in possession under the landlord, a tenant may remove
trade fixtures erected by him. After the term and his possession are
ended, any trade fixtures remaining will be regarded as abandoned
for the use of the landlord and will become the landlord's property.
§44-7-13
The landlord must keep the premises in repair. He shall be
liable for all substantial improvements placed upon the premises by
his consent.
§44-7-14
Having fully parted with possession and the right of possession,
the landlord is not responsible to third persons for damages
resulting from the negligence or illegal use of the premises by the
tenant; provided, however, the landlord is responsible for damages
arising from defective construction or for damages arising from the
failure to keep the premises in repair.
§44-7-14.1
(a) As used in this Code section, the term "utilities"
means heat, light, and water service.
(b) It shall be unlawful for any landlord knowingly and
willfully to suspend the furnishing of utilities to a tenant until
after the final disposition of any dispossessory proceeding by the
landlord against such tenant.
(c) Any person who violates subsection (b) of this Code
section shall, upon conviction, be assessed a fine not to exceed
$500.00.
§44-7-15
The destruction of a tenement by fire or the loss of possession
by any casualty not caused by the landlord or from a defect of his
title shall not abate the rent contracted to be paid.
§44-7-16
All contracts for rent shall bear interest from the time the
rent is due.
§44-7-17
When it is agreed that the tenant shall pay to the landlord as
rent a part of the crop produced on the lands rented from the
landlord and the tenant, in good faith, delivers the part of the
crop agreed on in discharge of his rent, such part of the crop so
delivered shall be discharged from the lien of any judgment, decree,
or other process whatsoever against the tenant.
§44-7-18
(a) As used in this Code section, the term:
(1) "Assignation" means the making of any
appointment or engagement for prostitution or any act in furtherance
of such appointment or engagement.
(2) "Prostitution" means the offering or giving of
the body for sexual intercourse, sex perversion, obscenity, or
lewdness for hire.
(3) "Tourist camp" means any temporary or permanent
buildings, tents, cabins or structures, or trailers or other
vehicles which are maintained, offered, or used for dwelling or
sleeping quarters for pay.
(b) All leases and agreements letting, subletting, or renting
any house, place, building, tourist camp, or other structure for the
purpose of prostitution or assignation shall be void.
§44-7-19
No county or municipal corporation may enact, maintain, or
enforce any ordinance or resolution which would regulate in any way
the amount of rent to be charged for privately owned, single-family
or multiple-unit residential rental property. This Code
section shall not be construed as prohibiting any county or
municipal corporation,or any authority created by a county or
municipal corporation for that purpose, from regulating in
any way property belonging to such county, such municipal
corporation, or such authority from entering into any agreements
with private persons, which agreements regulate the amount of rent
to be charged for such rental properties.
§44-7-20
When the owner of real property, either directly or through an
agent, seeks to lease or rent that property for residential
occupancy, prior to entering a written agreement for the leasehold
of that property, the owner shall, either directly or through an
agent, notify the prospective tenant in writing of the property's
propensity of flooding if flooding has damaged any portion of
the living space covered by the lease or attachments thereto
to which the tenant or the tenant's resident relative has sole and
exclusive use under the written agreement at least three times
during the five-year period immediately preceding the date of the
lease. An owner failing to give such notice shall be liable in tort
to the tenant and the tenant's family residing on the leased
premises for damages to the personal property of the lessee or a
resident relative of the lessee which is proximately caused by
flooding which occurs during the term of the lease. For purposes of
this Code section, flooding is defined as the inundation
of a portion of the living space covered by the lease which was
caused by an increased water level in an established water source
such as a river, stream, or drainage ditch or as a ponding of water
at or near the point where heavy or excessive rain fell. This Code
section shall apply only to leaseholds entered into on or
after July 1, 1995.
§44-7-21
(a) Where a landlord or tenant has entered into a written
brokerage commission agreement for the payment of compensation or
promise of payment to a real estate broker in consideration of
brokerage services rendered in connection with the consummation of a
lease, then, notwithstanding any rule or construction of law under
which such written brokerage commission agreement might otherwise be
considered the personal obligation of the original landlord or
tenant specifically named in the lease, such written brokerage
commission agreement shall, pursuant to the terms of this Code
section, constitute a binding contractual obligation of such
landlord or tenant, as the case may be, and of their respective
grantees, successors, and assigns. Upon any sale, transfer,
assignment, or other disposition, including, without limitation, by
reason of the enforcement of any mortgage, lien, deed to secure
debt, or other security instrument, of a landlord's interest in real
property or upon any sale, assignment, transfer, or other
disposition of a tenant's leasehold interest, the succeeding party
shall be bound for all obligations occurring after the sale,
transfer, assignment, or other disposition with the same effect as
if such succeeding party had expressly assumed the landlord's or
tenant's obligations relating to the written brokerage commission
agreement if:
(1) A written brokerage commission agreement is incorporated
into the lease;
(2) The real estate broker has complied with subsection (b)
of this Code section;
(3) The succeeding party assumes the benefits of the tenancy,
rental amount, and term of the lease; and
(4) The written brokerage commission agreement has not been
waived in writing by the broker. The conveyance or transfer
of the real property coupled with the continuing assumption of the
tenancy, rental amount, and term of said lease shall constitute
conclusive evidence of the succeeding landlord's or tenant's
agreement to pay such periodic commission payments under the written
brokerage commission agreement.
(b) A real estate broker shall be entitled to the protections
afforded by this Code section only upon the broker's recording a
notice of commission rights in the deed records in the office of the
clerk of the superior court in the county in which the real property
or leasehold interest is located within 30 days of the execution of
the lease incorporating the written brokerage commission agreement.
Said notice of commission rights must be filed before conveyance of
the real property, must be signed by the broker or by a person
expressly authorized to sign on behalf of the broker, and must
follow substantially the following form:
"NOTICE OF COMMISSION RIGHTS
The undersigned licensed Georgia real estate broker does
hereby publish this NOTICE OF COMMISSION RIGHTS pursuant to Code
Section 44-7-21 of the Official Code of Georgia Annotated to
establish that the lease set forth below contains a written
brokerage commission agreement providing for the payment or
promise of payment of compensation for brokerage services.
Owner
Landlord
Tenant
Lease date
Lease term
Project name or building
Legal Description: All that tract or parcel of land
lying and being in the State of Georgia, County of __________, being
more particularly described on Exhibit 'A' attached hereto and made
a part hereof. (A full and complete legal description is
required for this form to be valid.)
Given under hand and seal this _____ day of ______________,
____.
Signed, sealed, and delivered in the presence of:
Broker:
_______________________
______________________(Seal)
Unofficial Witness
Name:
______________________
Notary Public
Georgia Real Estate
(Notary Seal Attached)
License No. "
(c) The real estate broker must file a release of commission
rights within 30 days of receipt of the final payment of commissions
due under the written brokerage commission agreement.
(d) This Code section shall only apply to leaseholds of all
or a portion of commercial real estate as that term is defined in
Code Section 44-14-601 which are entered into on or after July 1,
1997.
(e) Notwithstanding any provision of this Code section to the
contrary, this Code section does not create an interest in the real
property which is the subject of the lease.
§44-7-30
As used in this article, the term:
(1) "Residential rental agreement" means a contract,
lease, or license agreement for the rental or use of real property
as a dwelling place.
(2) "Security deposit" means money or any other
form of security given after July 1, 1976, by a tenant to a landlord
which shall be held by the landlord on behalf of a tenant by virtue
of a residential rental agreement and shall include, but not be
limited to, damage deposits, advance rent deposits, and pet
deposits. The term "security deposit" does not include
earnest money or pet fees which are not to be returned to the tenant
under the terms of the residential rental agreement.
§44-7-31
Except as provided in Code Section 44-7-32, whenever a security
deposit is held by a landlord or his agent on behalf of a tenant,
such security deposit shall be deposited in an escrow account
established only for that purpose in any bank or lending institution
subject to regulation by this state or any agency of the United
States government. The security deposit shall be held in trust for
the tenant by the landlord or his agent except as provided in Code
Section 44-7-34. Tenants shall be informed in writing of the
location and account number of the escrow account required by this
Code section.
§44-7-32
(a) As an alternative to the requirement that security deposits
be placed in escrow as provided in Code Section 44-7-31, the
landlord may post and maintain an effective surety bond with the
clerk of the superior court in the county in which the dwelling unit
is located. The amount of the bond shall be the total amount of the
security deposits which the landlord holds on behalf of the tenants
or $50,000.00, whichever is less. The bond shall be executed by the
landlord as principal and a surety company authorized and licensed
to do business in this state as surety. The bond shall be
conditioned upon the faithful compliance of the landlord with Code
Section 44-7-34 and the return of the security deposits in the event
of the bankruptcy of the landlord or foreclosure of the premises and
shall run to the benefit of any tenant injured by the landlord's
violation of Code Section 44-7-34.
(b) The surety may withdraw from the bond by giving 30 days'
written notice by registered or certified mail or statutory
overnight delivery to the clerk of the superior court in the county
in which the principal's dwelling unit is located, provided that
such withdrawal shall not release the surety from any liability
existing under the bond at the time of the effective date of the
withdrawal.
(c) The clerk of the superior court shall receive a fee of
$5.00 for filing and recording the surety bond and shall also
receive a fee of $5.00 for canceling the surety bond. The clerk of
the superior court shall not be held personally liable should the
surety bond prove to be invalid.
§44-7-33
(a) Prior to tendering a security deposit, the tenant shall be
presented with a comprehensive list of any existing damage to the
premises, which list shall be for the tenant's permanent retention.
The tenant shall have the right to inspect the premises to ascertain
the accuracy of the list prior to taking occupancy. The landlord and
the tenant shall sign the list and this shall be conclusive evidence
of the accuracy of the list but shall not be conclusive as to latent
defects. If the tenant refuses to sign the list, the tenant shall
state specifically in writing the items on the list to which he
dissents and shall sign such statement of dissent.
(b) Within three business days after the date of the
termination of occupancy, the landlord or his agent shall inspect
the premises and compile a comprehensive list of any damage done to
the premises which is the basis for any charge against the security
deposit and the estimated dollar value of such damage. The tenant
shall have the right to inspect the premises within five business
days after the termination of the occupancy in order to ascertain
the accuracy of the list. The landlord and the tenant shall sign the
list, and this shall be conclusive evidence of the accuracy of the
list. If the tenant refuses to sign the list, he shall state
specifically in writing the items on the list to which he
dissents and shall sign such statement of dissent. If the tenant
terminates occupancy without notifying the landlord, the landlord
may make a final inspection within a reasonable time after
discovering the termination of occupancy.
(c) A tenant who disputes the accuracy of the final damage
list given pursuant to subsection (b) of this Code section may bring
an action in any court of competent jurisdiction in this state to
recover the portion of the security deposit which the tenant
believes to be wrongfully withheld for damages to the premises. The
tenant's claims shall be limited to those items to which the tenant
specifically dissented in accordance with this Code section. If the
tenant fails to sign a list or to dissent specifically in accordance
with this Code section, the tenant shall not be entitled to recover
the security deposit or any other damages under Code Section
44-7-35, provided that the lists required under this Code section
contain written notice of the tenant's duty to sign or to dissent to
the list.
§44-7-34
(a) Except as otherwise provided in this article, within one
month after the termination of the residential lease or the
surrender and acceptance of the premises, whichever occurs last, a
landlord shall return to the tenant the full security deposit which
was deposited with the landlord by the tenant. No security deposit
shall be retained to cover ordinary wear and tear which occurred as
a result of the use of the premises for the purposes for which the
premises were intended, provided that there was no negligence,
carelessness, accident, or abuse of the premises by the tenant or
members of his household or their invitees or guests. In the event
that actual cause exists for retaining any portion of the security
deposit, the landlord shall provide the tenant with a written
statement listing the exact reasons for the retention thereof. If
the reason for retention is based on damages to the premises, such
damages shall be listed as provided in Code Section 44-7-33. When
the statement is delivered, it shall be accompanied by a payment of
the difference between any sum deposited and the amount retained.
The landlord shall be deemed to have complied with this Code section
by mailing the statement and any payment required to the last known
address of the tenant via first class mail. If the letter containing
the payment is returned to the landlord undelivered and if the
landlord is unable to locate the tenant after reasonable effort, the
payment shall become the property of the landlord 90 days after the
date the payment was mailed. Nothing in this Code section shall
preclude the landlord from retaining the security deposit for
nonpayment of rent or of fees for late payment, for abandonment of
the premises, for nonpayment of utility charges, for repair work or
cleaning contracted for by the tenant with third parties, for unpaid
pet fees, or for actual damages caused by the tenant's breach,
provided the landlord attempts to mitigate the actual damages.
(b) In any court action in which there is a determination
that neither the landlord nor the tenant is entitled to all or a
portion of a security deposit under this article, the judge or the
jury, as the case may be, shall determine what would be an equitable
disposition of the security deposit; and the judge shall order the
security deposit paid in accordance with such disposition.
§44-7-35
(a) A landlord shall not be entitled to retain any portion of a
security deposit if the security deposit was not deposited in an
escrow account in accordance with Code Section 44-7-31 or a surety
bond was not posted in accordance with Code Section 44-7-32 and if
the initial and final damage lists required by Code Section 44-7-33
are not made and provided to the tenant.
(b) The failure of a landlord to provide each of the written
statements within the time periods specified in Code Sections
44-7-33 and 44-7-34 shall work a forfeiture of all his rights to
withhold any portion of the security deposit or to bring an action
against the tenant for damages to the premises.
(c) Any landlord who fails to return any part of a security
deposit which is required to be returned to a tenant pursuant to
this article shall be liable to the tenant in the amount of three
times the sum improperly withheld plus reasonable attorney's fees;
provided, however, that the landlord shall be liable only for the
sum erroneously withheld if the landlord shows by the preponderance
of the evidence that the withholding was not intentional and
resulted from a bona fide error which occurred in spite of the
existence of procedures reasonably designed to avoid such errors.
§44-7-36
Code Sections 44-7-31, 44-7-32, 44-7-33, and 44-7-35 shall not
apply to rental units which are owned by a natural person if such
natural person, his or her spouse, and his or her minor children
collectively own ten or fewer rental units; provided, however, that
this exemption does not apply to units for which management,
including rent collection, is performed by third persons, natural or
otherwise, for a fee.
§44-7-37
Notwithstanding any other provision of this chapter, if a person
is on active duty with the United States military and enters into a
residential lease of property for occupancy by that person or that
person's immediate family and subsequently receives permanent change
of station orders or temporary duty orders for a period in excess of
three months, any liability of the person for rent under the lease
may not exceed:
(1) Thirty days' rent after written notice and proof of the
assignment are given to the landlord; and
(2) The cost of repairing damage to the premises caused by an
act or omission of the tenant.
§44-7-50
(a) In all cases where a tenant holds possession of lands or
tenements over and beyond the term for which they were rented or
leased to the tenant or fails to pay the rent when it becomes due
and in all cases where lands or tenements are held and occupied by
any tenant at will or sufferance, whether under contract of rent or
not, when the owner of the lands or tenements desires possession of
the lands or tenements, the owner may, individually or by an agent,
attorney in fact, or attorney at law, demand the possession of the
property so rented, leased, held, or occupied. If the tenant refuses
or fails to deliver possession when so demanded, the owner or the
agent, attorney at law, or attorney in fact of the owner may go
before the judge of the superior court, the judge of the state
court, or the clerk or deputy clerk of either court, or the judge or
the clerk or deputy clerk of any other court with jurisdiction over
the subject matter, or a magistrate in the district where the land
lies and make an affidavit under oath to the facts. The
affidavit may likewise be made before a notary public, subject to
the same requirements for judicial approval specified in Code
Section 18-4-61, relating to garnishment affidavits.
(b) If issued by a public housing authority, the demand for
possession required by subsection (a) of this Code section may be
provided concurrently with the federally required notice of lease
termination in a separate writing.
§44-7-51
(a) When the affidavit provided for in Code Section 44-7-50 is
made, the judge of the superior court, the state court, or any other
court with jurisdiction over the subject matter or the judge, clerk,
or deputy clerk of the magistrate court shall grant and issue a
summons to the sheriff or his deputy or to any lawful constable of
the county where the land is located. A copy of the summons
and a copy of the affidavit shall be personally served upon the
defendant. If the sheriff is unable to serve the defendant
personally, service may be had by delivering the summons and the
affidavit to any person who is sui juris residing on the premises
or, if after reasonable effort no such person is found residing on
the premises, by posting a copy of the summons and the affidavit on
the door of the premises and, on the same day of such posting, by
enclosing, directing, stamping, and mailing by first-class mail a
copy of the summons and the affidavit to the defendant at his last
known address, if any, and making an entry of this action on the
affidavit filed in the case.
(b) The summons served on the defendant pursuant to
subsection (a)of this Code section shall command and require the
tenant to answer either orally or in writing within seven days from
the date of the actual service unless the seventh day is a Saturday,
a Sunday, or a legal holiday, in which case the answer may be made
on the next day which is not a Saturday, a Sunday, or a legal
holiday. If the answer is oral, the substance thereof shall be
endorsed on the dispossessory affidavit. The answer may contain any
legal or equitable defense or counterclaim. The landlord need not
appear on the date of the tenant's response. The last possible date
to answer shall be stated on the summons.
§44-7-52
(a) Except as provided in subsection (c) of this Code section,
in an action for nonpayment of rent, the tenant shall be allowed to
tender to the landlord, within seven days of the day the tenant was
served with the summons pursuant to Code Section 44-7-51, all rents
allegedly owed plus the cost of the dispossessory warrant.
Such a tender shall be a complete defense to the action; provided,
however, that a landlord is required to accept such a tender from
any individual tenant after the issuance of a dispossessory summons
only once in any 12 month period.
(b) If the court finds that the tenant is entitled to prevail
on the defense provided in subsection (a) of this Code section and
the landlord refused the tender as provided under subsection (a) of
this Code section, the court shall issue an order requiring the
tenant to pay to the landlord all rents which are owed by the tenant
and the costs of the dispossessory warrant within three days of said
order. Upon failure of the tenant to pay such sum, a writ of
possession shall issue. Such payment shall not count as a
tender pursuant to subsection (a) of this Code section.
(c) For a tenant who is not a tenant under a residential
rental agreement as defined in Code Section 44-7-30, tender and
acceptance of less than all rents allegedly owed plus the cost of
the dispossessory warrant shall not be a bar nor a defense to an
action brought under Code Section 44-7-50 but shall, upon proof of
same, be considered by the trial court when awarding damages.
§44-7-53
(a) If the tenant fails to answer as provided in subsection (b)
of Code Section 44-7-51, the court shall issue a writ of possession
instanter notwithstanding Code Section 9-11-55 or Code Section
9-11-62; and the plaintiff shall be entitled to a verdict and
judgment by default for all rents due, in open court or in chambers,
as if every item and paragraph of the affidavit provided for in Code
Section 44-7-50 were supported by proper evidence, without the
intervention of a jury.
(b) If the tenant answers, a trial of the issues shall be had
in accordance with the procedure prescribed for civil actions in
courts of record except that if the action is tried in the
magistrate court the trial shall be had in accordance with the
procedures prescribed for that court. Every effort should be made by
the trial court to expedite a trial of the issues. The defendant
shall be allowed to remain in possession of the premises pending the
final outcome of the litigation; provided, however, that, at the
time of his answer, the tenant must pay rent into the registry of
the court pursuant to Code Section 44-7-54.
§44-7-54
(a) In any case where the issue of the right of possession
cannot be finally determined within two weeks from the date of
service of the copy of the summons and the copy of the affidavit,
the tenant shall be required to pay into the registry of the trial
court:
(1) All rent and utility payments which are the
responsibility of the tenant payable to the landlord under terms of
the lease which become due after the issuance of the dispossessory
warrant, said rent and utility payments to be paid as such become
due. If the landlord and the tenant disagree as to the amount of
rent, either or both of them may submit to the court any written
rental contract for the purpose of establishing the amount of rent
to be paid into the registry of the court. If the amount of rent is
in controversy and no written rental agreement exists between the
tenant and landlord, the court shall require the amount of rent to
be a sum equal to the last previous rental payment made by the
tenant and accepted by the landlord without written objection; and
(2) All rent and utility payments which are the
responsibility of the tenant payable to the landlord under terms of
the lease allegedly owed prior to the issuance of the dispossessory
warrant; provided, however, that, in lieu of such payment, the
tenant shall be allowed to submit to the court a receipt indicating
that payment has been made to the landlord. In the event that the
amount of rent is in controversy, the court shall determine the
amount of rent to be paid into court in the same manner as provided
in paragraph (1) of this subsection.
(b) If the tenant should fail to make any payment as it
becomes due pursuant to paragraph (1) or (2) of subsection (a) of
this Code section, the court shall issue a writ of possession and
the landlord shall be placed in full possession of the premises by
the sheriff, the deputy, or the constable.
(c) The court shall order the clerk of the court to pay to
the landlord the payments claimed under the rental contracts paid
into the registry of the court as said payments are made; provided,
however, that, if the tenant claims that he or she is entitled to
all or any part of the funds and such claim is an issue of
controversy in the litigation, the court shall order the clerk to
pay to the landlord without delay only that portion of the funds to
which the tenant has made no claim in the proceedings or may make
such other order as is appropriate under the circumstances.
That part of the funds which is a matter of controversy in the
litigation shall remain in the registry of the court until a
determination of the issues by the trial court. If either
party appeals the decision of the trial court, that part of the
funds equal to any sums found by the trial court to be due from the
landlord to the tenant shall remain in the registry of the court
until a final determination of the issues. The court shall
order the clerk to pay to the landlord without delay the remaining
funds in court and all payments of future rent made into court
pursuant to paragraph (1) of subsection (a) of this Code section
unless the tenant can show good cause that some or all of such
payments should remain in court pending a final determination
of the issues.
§44-7-55
(a) If, on the trial of the case, the judgment is against the
tenant, judgment shall be entered against the tenant for all rents
due and for any other claim relating to the dispute. The court shall
issue a writ of possession, both of execution for the judgment
amount and a writ to be effective at the expiration of seven days
after the date such judgment was entered, except as otherwise
provided in Code Section 44-7-56.
(b) If the judgment is for the tenant, he shall be entitled
to remain in the premises and the landlord shall be liable for all
foreseeable damages shown to have been caused by his wrongful
conduct. Any funds remaining in the registry of the court shall be
distributed to the parties in accordance with the judgment of the
court.
§44-7-56
Any judgment by the trial court shall be appealable pursuant to
Chapters 2, 3, 6, and 7 of Title 5, provided that any such appeal
shall be filed within seven days of the date such judgment was
entered and provided, further, that, after the notice of appeal is
filed with the clerk of the trial court, the clerk shall immediately
notify the trial judge of the notice of appeal and the trial judge
may, within 15 days, supplement the record with findings of fact and
conclusions of law which will be considered as a part of the order
of the judge in that case. If the judgment of the trial court
is against the tenant and the tenant appeals this judgment, the
court may upon motion of the landlord and upon good cause
shown order the tenant to pay into the registry of the court all
sums found by the trial court to be due for rent in order to remain
in possession of the premises. The tenant shall also be
required to pay all future rent as it becomes due into the registry
of the trial court pursuant to paragraph (1) of subsection (a) of
Code Section 44-7-54 until the issue has been finally determined on
appeal.
§44-7-57
This article shall apply to croppers and servants who continue
to hold possession of lands and tenements after their employment as
croppers or servants has terminated and in the same manner as it
relates to tenants.
§44-7-58
Anyone who, under oath or affirmation, knowingly and willingly
makes a false statement in an affidavit signed pursuant to Code
Section 44-7-50 or in an answer filed pursuant to Code Section
44-7-51 shall be guilty of a misdemeanor.
§44-7-59
If the court issues a writ of possession to property upon which
the tenant has placed a manufactured home, mobile home, trailer, or
other type of transportable housing and the tenant does not move the
same within ten days after a final order is entered, the landlord
shall be entitled to have such transportable housing moved from the
property at the expense of the tenant by a motor common carrier
licensed by the Public Service Commission for the transportation of
manufactured housing. There shall be a lien upon such transportable
housing to the extent of moving fees and storage expenses in favor
of the person performing such services. Such lien may be
claimed and foreclosed in the same manner as special liens on
personalty by mechanics under Code Sections 44-14-363 and 44-14-550,
except that storage fees not to exceed $4.00 per day shall be
expressly allowed.
§44-7-70
The landlord shall have power to distrain for rent as soon as
the same is due if the tenant is seeking to remove his property from
the premises.
§44-7-71
When rent is due or the tenant is seeking to remove his
property, the landlord, his agent, his attorney in fact, or his
attorney at law may, upon a statement of the facts under oath, apply
for a distress warrant before the judge of the superior court, the
state court, the civil court, or the magistrate court within the
county where the tenant may reside or where his property may
be found.
§44-7-72
When the affidavit provided for in Code Section 44-7-71 is made,
the judge of the superior court, the state court, the civil court,
or the magistrate court before whom it was made shall grant and
issue a summons to the marshal or the sheriff or his deputy of the
county where the tenant resides or where his property may be found.
A copy of the summons and the affidavit shall be personally served
upon the defendant. If an officer is unable to serve the defendant
personally, service may be given by delivering the summons and
affidavit to any person who is sui juris residing on the premises.
The summons served on the defendant pursuant to this Code section
shall command and require the tenant to appear at a hearing on a day
certain not less than five nor more than seven days from the date of
actual service.
§44-7-73
In an action for nonpayment of rent, the tenant shall be allowed
to tender to the landlord, within seven days of the day the tenant
was served with the summons pursuant to Code Section 44-7-72, all
rents allegedly owed plus the cost of the distress warrant. Such a
tender shall be a complete defense to the action.
§44-7-74
(a) At or before the time of the hearing, the defendant may
answer in writing. The defendant may answer orally at the time of
the hearing. If the answer is oral, the substance thereof shall be
endorsed upon the affidavit. The answer may contain any legal or
equitable defense or counterclaim.
(b) If the tenant fails to answer, the court shall grant a
distress warrant; and the plaintiff shall be entitled to a verdict
and judgment by default for all rents due as if every item and
paragraph of the affidavit provided for in Code Section 44-7-71 were
supported by proper evidence, which verdict shall be in open court
or chambers and without the intervention of a jury.
(c) If the tenant answers, a trial of the issues shall be had
in accordance with the procedure prescribed for civil actions in
courts of record except that if the action is tried in the
magistrate court the trial shall be had in accordance with the
procedures prescribed for that court. Every effort shall be made by
the trial court to expedite a trial of the issues. The defendant
shall be allowed to remain in possession of the premises and his
property pending the final outcome of the litigation, provided that
he complies with Code Section 44-7-75.
§44-7-75
(a) At the time the tenant answers, the tenant shall pay into
the registry of the trial court all rent admittedly owed prior to
the issuance of the summons; provided, however, that, in lieu of
such payment, the tenant shall be allowed to submit to the court a
receipt indicating that the payment has been made to the landlord.
In the event that the amount of rent is in controversy, the court
shall determine the amount of rent to be paid into court in the same
manner as provided in subsection (b) of this Code section.
(b) The tenant shall pay into the registry of the trial court
all rent which becomes due after the issuance of the summons and
shall pay said rent as it becomes due. If the landlord and tenant
disagree as to the amount of rent, either or both of them may submit
to the court any written rental contract for the purpose of
establishing the amount of the rent to be paid into the registry of
the court. If the amount of rent is in controversy and no written
rental agreement exists between the tenant and the landlord, the
court shall require the amount of rent to be a sum equal to the last
previous rental payment made by the tenant and accepted by the
landlord without written objection.
(c) If the landlord is also seeking a dispossessory warrant
against the tenant pursuant to Article 3 of this chapter, money paid
into court under Code Section 44-7-54 shall fully satisfy the
requirements under subsections (a) and (b) of this Code section.
(d) After the date of the service of the summons as provided
in Code Section 44-7-72, the tenant shall not transfer, convey,
remove, or conceal his property without either posting bond as
provided in Code Section 44-7-76 or complying with subsections (a)
and (b) of this Code section.
(e) If the tenant shall fail to comply with any of the
provisions of this Code section, the tenant shall not be entitled to
retain possession of his property pending a trial on the merits as
provided by Code Section 44-7-74 unless he posts bond as provided by
Code Section 44-7-76. Failure to comply with any provision of this
Code section shall in no way affect the tenant's ability to litigate
the issues raised in his answer but shall only affect the possession
of the property pendente lite. If judgment is against the tenant,
the property involved shall be seized by the marshal, the sheriff,
or the deputy, as the case may be, and held thereby for levy and
sale after judgment as provided by Code Section 44-7-79.
(f) The court shall order the clerk of the court to pay to
the landlord the amounts paid into the registry of the court as such
payments are made; provided, however, that, if the tenant claims
that he is entitled to all or a part of the funds and such claim is
an issue of controversy in the litigation, the court shall order the
clerk to pay to the landlord without delay only that portion of the
funds to which the tenant has made no claim in the proceedings. That
part of the funds which is a matter of controversy in the litigation
shall remain in the registry of the court until a final
determination of the issues.
§44-7-76
In all cases where the tenant may desire to transfer, remove, or
convey any of his property after the service of summons, the tenant
shall post bond with good security for a sum equal to the value of
the property or the amount of the rent alleged to be due, whichever
is less, to be estimated by the judge, for the delivery of the
property at the time and place of sale if the property shall be
found subject to such rent. Upon the approval of the bond by the
judge, the tenant may convey, transfer, or remove his property
without restriction.
§44-7-77
(a) If, on the trial of the case, the judgment is against the
tenant, the judgment shall be entered against the tenant for all
rent due and for any other claim relating to the dispute and the
distress warrant shall be granted.
(b) If the judgment is for the tenant, he shall be entitled
to remain in the premises and in possession of his property and the
landlord shall be liable for all foreseeable damages shown to have
been caused by his wrongful conduct. Any funds remaining in the
registry of the court shall be distributed to the parties in
accordance with the judgment of the court. If the tenant has been
deprived of the possession of his property pendente lite pursuant to
subsection (e) of Code Section 44-7-75, the court shall order that
the property be returned immediately to the tenant.
§44-7-78
Any judgment by the trial court shall be appealable to the
appellate court pursuant to Chapters 2, 3, 6, and 7 of Title 5. If
the judgment of the trial court is against the tenant and the tenant
appeals this judgment, the tenant shall remain in the premises and
in possession of his property; provided, however, that the tenant
shall comply with all provisions of Code Section 44-7-75 or 44-7-76
until the issue has been finally determined on appeal.
§44-7-79
Whenever a distress warrant is granted pursuant to this article,
the distress warrant may be levied by the marshal, the sheriff, or
the deputy on any property belonging to said tenant whether found on
the premises or elsewhere; and the marshal, the sheriff, or the
deputy shall advertise and sell the property in the same manner as
in the case of levy and sale under execution.
§44-7-80
The landlord's lien for his rent shall attach from the time that
the affidavit is made pursuant to Code Section 44-7-71; but it shall
take precedence over no lien of older date except as to the crop
raised on the premises.
§44-7-81
A third person may make a claim to the distrained property by
giving the oath and the bond as is required in cases of other
claims. Such a claim shall be returned and tried as is provided by
law for the trial of the right of property levied upon by execution.
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