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Understanding the Eviction Process

Published Monday, March 9, 2015

Under Georgia law, a landlord can file a court action to evict a tenant for not paying rent or violating a part of the lease agreement. It can be an incredibly fast process. There are protections built into the law for tenants. So, whether you are a landlord or a tenant, it is good to understand the processes.

 

Stewart Melvin & Frost attorney Rustin Smith joins us to talk about the eviction process in Georgia.

 

Question: Rustin, how does the eviction process start in Georgia?

 

Rustin: Overall, the process for starting an eviction highly depends on whether there is a written lease that provides a process apart from the default process provided in the law.

 

Evictions can be filed for many reasons, but the most common is unpaid rent. Say the tenant’s rent is due on the first day of the month but the tenant doesn’t pay. Within a few days, the landlord typically will contact the tenant, whether verbally or in writing, and either demand payment or demand the tenant to “vacate” or “quit” the premises. At this point, it’s usually best for the tenant to contact the landlord immediately and pay the back rent as soon as possible.

 

Depending on whether the parties have a written lease that provides steps to follow after a missed payment, the landlord may not be required to accept the late rent payment offered by the tenant. Unless the lease says otherwise, once the landlord demands the tenant to leave the premises, the landlord can proceed immediately with filing an eviction action in court.

 

Question: What happens once the case is filed with the court?

 

Rusting: In Georgia, evictions are almost always filed in Magistrate Court unless the rent owed is over $15,000. Once filed, a sheriff’s deputy will deliver to the premises a “Summons” with instructions for answering the eviction action. The Summons can be handed to any adult at the premises or simply tacked on the door.

 

At that point, the tenant has seven calendar days to go to the court and file an answer. If an answer is filed on time, the court will set a hearing within a couple of weeks to hear the facts of the dispute. If no answer is filed, the landlord is entitled to a “writ of possession” that a sheriff’s deputy can take to the premises to ensure the tenant will move out. Additionally, the court may award the landlord a “default judgment” for the back rent and court costs, and perhaps other damages sought in the case, including attorney fees if the landlord uses an attorney.

 

Question: Besides nonpayment of rent, what are some other grounds for evictions?

 

Rustin: The second most common reason is when the tenant does not move out after the lease period expires or the landlord otherwise terminates the lease. Again, the process under this scenario highly depends on whether there is a written lease and what it says. If there is no lease, the tenant is considered a “tenant at will,” which in Georgia requires the landlord to give 60 days’ notice to terminate so long as the tenant is paying rent on time. At that point, the landlord can demand the tenant to move out and file the eviction. Other grounds for eviction include damaging the property or violations of the written lease, for example if the tenant allows persons to live on the premises who are not listed in the lease.

 

Question: Can a tenant have a legitimate reason for not paying rent such as losing a job or large medical bills?

Rustin: Renters often struggle to pay due to lost income or other debt obligations. But Georgia law recognizes the owners’ need to receive rent in order to pay a mortgage or taxes on the property.

 

Like a loan or any other contract requiring regular payments, the court will not excuse nonpayment under a rental agreement, whether written or verbal, based on the tenant’s financial circumstances. In fact, this is such a common misunderstanding that Magistrate Court judges often explain this to all parties before starting eviction hearings, in order to avoid getting into the issue.

 

Question: What general advice do you have for landlords and tenants?

 

Rustin: The best advice is to draft a good and thorough lease at the very beginning of the relationship. Although people have been renting property for thousands of years, it is still very difficult to anticipate all the modern-day disputes, legitimate or not, that could land both parties in court for a judge to resolve. Landlords and tenants can avoid a lot of future frustration and legal costs by having a specialist lawyer draft a lease that is tailored to the parties and easy for them to understand and use in their particular situation.

 

 

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