2021 Georgia Code
Title 44 - Property
Chapter 7 - Landlord and Tenant
Article 1 - In General
§ 44-7-7. Tenancy at Will - Notice Required for Termination

Sixty days' notice from the landlord or 30 days' notice from the tenant is necessary to terminate a tenancy at will.

(Orig. Code 1863, § 2272; Code 1868, § 2265; Code 1873, § 2291; Code 1882, § 2291; Civil Code 1895, § 3133; Civil Code 1910, § 3709; Code 1933, § 61-105; Ga. L. 1962, p. 463, § 1.)

- For article surveying real property law, see 34 Mercer L. Rev. 255 (1982).

JUDICIAL DECISIONS

Applicability to tenant at sufferance.

- Tenant at sufferance is not entitled to notice to quit. Willis v. Harrell, 118 Ga. 906, 45 S.E. 794 (1903); Carruth v. Carruth, 77 Ga. App. 131, 48 S.E.2d 387 (1948); Wilson v. Lee, 129 Ga. App. 647, 200 S.E.2d 480 (1973).

Tenant became a tenant at sufferance by continuing to maintain the tenant's billboards on the property without the city's consent after the city purchased the property and the amended lease was terminated and, thus, the tenant was not entitled to 60-days notice of termination. Outfront Media, LLC v. City of Sandy Springs, 356 Ga. App. 405, 847 S.E.2d 597 (2020).

- Statute is applicable to the refusal of the tenant to vacate after the tenant had been given the two months' notice to quit, required by this statute, and not upon the failure to pay rent when due. Morris v. Battey, 28 Ga. App. 90, 110 S.E. 342 (1922); Craig v. Day, 92 Ga. App. 339, 88 S.E.2d 451 (1955) ??? (see O.C.G.A. § 44-7-7).

Although the tenant in a dispossessory action argued that the tenant was a tenant at will and entitled to 60 days notice of the termination of the tenant's tenancy under O.C.G.A. § 44-7-7, the tenant admitted that the tenant entered into a 10-year lease and thus was not a tenant at will; in any event, there was no requirement that the lease or the tenancy be terminated before filing a dispossessory action for nonpayment of rent. Siratu v. Diane Inv. Group, 298 Ga. App. 127, 679 S.E.2d 359 (2009).

- Two months' notice required by this statute is not such a demand for possession of the premises as will warrant the issuance by the landlord of a summary proceeding to dispossess the tenant. Ginn v. Johnson, 74 Ga. App. 35, 38 S.E.2d 753 (1946); Goff v. Cooper, 110 Ga. App. 339, 138 S.E.2d 449 (1964); Trumpet v. Brown, 215 Ga. App. 299, 450 S.E.2d 316 (1994) ??? (see O.C.G.A. § 44-7-7).

- Notice to quit is a condition precedent for an action to evict a tenant at will. Carruth v. Carruth, 77 Ga. App. 131, 48 S.E.2d 387 (1948).

- Failure by the landlord to give the statutory notice of two months would be a good defense to a dispossessory warrant. Imperial Hotel Co. v. Martin, 199 Ga. 801, 35 S.E.2d 502 (1945).

- Though notice to quit was not served upon the proper agent of the tenant, if the tenant got the notice it is sufficient. Godfrey v. Walker, 42 Ga. 562 (1871).

When the landlord, more than 60 days before the expiration of the term of the lease, told the tenants that the landlord would sell the house after the tenants advised the landlord of their inability to buy the house, and placed a For Sale sign in the yard, notice to quit was satisfactorily given. Burns v. Reves, 217 Ga. App. 316, 457 S.E.2d 178 (1995).

- When the matter had been referred to the attorneys by both parties, the 60 days' notice to vacate the premises given by the attorney for the landlord to the attorney for the tenant is a sufficient compliance with this statute. Farlow v. Central Oil Co., 74 Ga. App. 349, 39 S.E.2d 561 (1946); Proffitt v. Housing Sys., 154 Ga. App. 114, 267 S.E.2d 650 (1980) ??? (see O.C.G.A. § 44-7-7).

- There is no distinction recognized by our Code between a tenant at will by express agreement and a tenant at will by operation of law so far as the right to terminate the tenancy by either party is concerned by giving the required notice. Western Union Tel. Co. v. Fain & Parrott, 52 Ga. 18 (1874).

- Burden of proof is on the landlord to show that the required notice was timely given. Harrell v. Souter, 27 Ga. App. 531, 109 S.E. 301 (1921); Howington v. W.H. Ferguson & Sons, 147 Ga. App. 636, 249 S.E.2d 687 (1978).

- Tenant at will is entitled to notice to quit, and to emoluments. Cody v. Quarterman, 12 Ga. 386 (1852); Nicholes v. Swift, 118 Ga. 922, 45 S.E. 708 (1903).

- Term of a tenant at will does not expire at the instance of the landlord until two months after notice from the landlord to terminate the tenancy. Byrne v. Bearden, 27 Ga. App. 149, 107 S.E. 782 (1921); Harrell v. Souter, 27 Ga. App. 531, 109 S.E. 301 (1921).

- Purchaser of realty from a landlord during the term of a tenant at will is entitled, upon notice as prescribed by law, to terminate the tenancy, and thereafter to dispossess the tenant. Willis v. Harrell, 118 Ga. 906, 45 S.E. 794 (1903); Tatum v. Padrosa, 24 Ga. App. 259, 100 S.E. 653 (1919).

- When neither party to the purchase and sale of a home attempted to terminate the tenancy of the purchaser, the agreement did not terminate the tenancy or the obligation of the purchaser to pay rent. Dismuke v. Abbott, 233 Ga. App. 844, 505 S.E.2d 58 (1998).

- Debtor failed to prove by a preponderance of the evidence that the debtor's current Chapter 13 case was filed in good faith as to the debtor's landlord when the debtor's attempt to assume the lease and the debtor's past dealings with the landlord indicated that the petition was filed for the sole purpose of hindering the landlord's ability to dispossess the debtor. Assuming without deciding that the debtor could attempt to assume the debtor's lease, once assumed the debtor would obtain no more rights in the lease than the debtor held on the petition date and, as the debtor's interest in property as of that date was, at best, a tenancy at will, then despite the bankruptcy filing, the landlord would still have the right to terminate the debtor's tenancy under Georgia law by providing 60 days' notice. In re Bowman, 555 Bankr. 918 (Bankr. S.D. Ga. 2016).

- When the term of the parol agreement was indefinite, the defendant was a tenant at will of the plaintiff, and the plaintiff could terminate the tenancy by giving the defendant two months' notice. Heaton v. Fulton Nat'l Bank, 46 Ga. App. 773, 169 S.E. 216 (1933).

- If a landlord seeks to regain possession of the landlord's premises on the ground that the tenant is holding over beyond the term, the landlord's acceptance of rent which has accrued subsequent to the time the dispossessory proceedings are initiated and up to the time of trial is not inconsistent with the landlord's demand for possession of the property and does not require a finding that a new tenancy at will has been created. Since there was no suggestion in the record that the landlord accepted a rent payment before instituting the dispossessory proceedings, the evidence did not support a finding that the original notice of termination and demand for possession were waived. Williams v. Clayton Park Mobile Home Court, 166 Ga. App. 359, 304 S.E.2d 483 (1983).

When a lessor terminated a lease for reasons other than nonpayment of rent, and the lessee held over, acceptance of rent from the lessee did not convert the tenancy at sufferance to one of tenancy at will. Solon Automated Servs., Inc. v. Corporation of Mercer Univ., 221 Ga. App. 856, 473 S.E.2d 544 (1996).

Creditor won relief from the automatic stay per 11 U.S.C. § 362 to pursue any rights that the creditor had under Georgia law such as those provided in O.C.G.A. §§ 44-7-6 and44-7-7 under which the creditor was entitled to terminate a tenancy at will with sixty days' notice. If, as the debtor argued, the creditor's acceptance of "rent" created a tenancy at will under state law, the existence of a state law right to terminate that tenancy constituted "cause" for relief from stay. In re Nittolo, Bankr. (Bankr. N.D. Ga. Mar. 16, 2012).

- Oral agreement to rent real property that did not specify a date for termination was a tenancy at will, and the trial court's judgment ordering two tenants to vacate the property after the landlord gave them 60 days' notice that the landlord was terminating the tenancy was upheld. Gu v. Liu, 262 Ga. App. 443, 585 S.E.2d 740 (2003).

Cited in Weed v. Lindsay & Morgan, 88 Ga. 686, 15 S.E. 836, 20 L.R.A. 33 (1892); Roberson v. Simons, 109 Ga. 360, 34 S.E. 603 (1899); Nicholes v. Swift, 118 Ga. 922, 45 S.E. 708 (1903); Parham v. Kennedy, 60 Ga. App. 52, 2 S.E.2d 765 (1939); Mattox v. Chapman, 67 Ga. App. 465, 20 S.E.2d 859 (1942); Lamons v. Good Foods, Inc., 195 Ga. 475, 24 S.E.2d 678 (1943); In re Freeman, 49 F. Supp. 163 (S.D. Ga. 1943); Minor v. Sutton, 73 Ga. App. 253, 36 S.E.2d 158 (1945); Kenney v. Pitts, 73 Ga. App. 450, 36 S.E.2d 820 (1946); Simpson v. Blanchard, 73 Ga. App. 843, 38 S.E.2d 634 (1946); Jackson v. Hardin, 74 Ga. App. 39, 38 S.E.2d 695 (1946); Pace v. Radcliff Mem. Presbyterian Church, 76 Ga. App. 840, 47 S.E.2d 588 (1948); Smith v. Hightower, 80 Ga. App. 293, 55 S.E.2d 872 (1949); City Council v. Henry, 92 Ga. App. 408, 88 S.E.2d 576 (1955); Stevenson v. Allen, 94 Ga. App. 123, 93 S.E.2d 794 (1956); Ammons v. Central of Ga. Ry., 215 Ga. 758, 113 S.E.2d 438 (1960); Moon v. Stone Mt. Mem. Ass'n, 223 Ga. 696, 157 S.E.2d 461 (1967); Merry v. Georgia Big Boy Mgt., Inc., 135 Ga. App. 707, 218 S.E.2d 694 (1975); Harkins v. Harkins, 153 Ga. App. 104, 264 S.E.2d 572 (1980); Knighton v. Gary, 163 Ga. App. 394, 295 S.E.2d 138 (1982); Cheeves v. Horne, 167 Ga. App. 786, 307 S.E.2d 687 (1983); D. Jack Davis Corp. v. Karp, 175 Ga. App. 482, 333 S.E.2d 685 (1985); Craft's Ocean Court, Inc. v. Coast House Ltd., 255 Ga. 336, 338 S.E.2d 277 (1986); DeKalb County v. Glaze, 189 Ga. App. 1, 375 S.E.2d 66 (1988); Alexander v. Steining, 197 Ga. App. 328, 398 S.E.2d 390 (1990); Diner One, Inc. v. Bank South, 219 Ga. App. 702, 466 S.E.2d 234 (1995); Williams v. State, 261 Ga. App. 511, 583 S.E.2d 172 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 49 Am. Jur. 2d, Landlord and Tenant, §§ 73, 825.

- 51C C.J.S., Landlord and Tenant, § 173.

- Construction of provision for termination of lease in event of sale of property, 35 A.L.R. 518; 116 A.L.R. 931; 163 A.L.R. 1019.

Computation and requisites of period of notice given to terminate tenancy, 86 A.L.R. 1346.

Waiver or revocation by landlord of notice given by him to terminate tenancy, 120 A.L.R. 557.

Conveyance or lease by landlord as termination of existing tenancy at will, 120 A.L.R. 1006.

Deed or lease of real property as affecting rights and remedies available against tenant at will or by sufferance, 151 A.L.R. 369.

Right of landlord legally entitled to possession to dispossess tenant without legal process, 6 A.L.R.3d 177.