2020 Georgia Code
Title 44 - Property
Chapter 7 - Landlord and Tenant
Article 2 - Security Deposits
§ 44-7-35. Remedies for Landlord's Noncompliance With Article

1. A landlord shall not be entitled to retain any portion of a security deposit if:
   1. 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;
   2. The initial damage list required by subsection (a) of Code Section 44-7-33 was not made and presented to the tenant as required by such subsection; and
   3. The final damage list required by subsection (b) of Code Section 44-7-33 was not compiled and made available to the tenant as required by such subsection.
2. The failure of a landlord to provide the lists and written statements within the time periods specified in Code Section 44-7-34 shall work a forfeiture of all the landlord's rights to withhold any portion of the security deposit or to bring an action against the tenant for damages to the premises.
3. 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.

(Code 1933, § 61-606, enacted by Ga. L. 1976, p. 1372, § 6; Ga. L. 2018, p. 969, § 3/HB 834.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of subsection (a) for the former provisions, which read: "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."; and, in subsection (b), substituted "provide the lists and" for "provide each of the" near the beginning, substituted "Code Section 44-7-34" for "Code Sections 44-7-33 and 44-7-34" near the middle, and substituted "the landlord's rights" for "his rights" in the middle.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 155 (2018).

JUDICIAL DECISIONS

Applicability.

- While Ga. L. 1976, p. 1372, § 6 (see O.C.G.A. § 44-7-35(b)) clearly bars a landlord from withholding a security deposit to recover damages to the premises or from bringing action against the tenant for damages to the premises if the landlord does not provide the specific written statements, it does not bar the landlord from bringing an action to recover unpaid rent due on the lease contract or from withholding the security deposit for nonpayment of rent. Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 274 S.E.2d 620 (1980).

When a landlord does not retain a security deposit and is therefore not required to provide written statements under O.C.G.A. §§ 44-7-33 and44-7-34, the landlord's failure to do so cannot work a forfeiture of the right to sue the tenant for damages to the property under subsection (b) O.C.G.A. § 44-7-35. Travelers Ins. Co. v. Linn, 235 Ga. App. 641, 510 S.E.2d 139 (1998).

- In an insurer's subrogation action against a tenant who had negligently caused damage to a home, the landlord's failure to provide the tenant with a list of existing defects and damages to the home as required by O.C.G.A. § 44-7-33 worked a forfeiture of the insurer's right to recover damages. State Farm Fire & Cas. Co. v. Bajalia, 216 Ga. App. 707, 456 S.E.2d 77 (1995).

- Since the landlord was not required to return the security deposit lawfully withheld for nonpayment of rent, the landlord was not liable under subsection (c) of Ga. L. 1976, p. 1372, § 6 (see O.C.G.A. § 44-7-35) or three times the amount of the security deposit, as that is a sanction imposed if security deposits are not returned when there are no damages to the premises, unpaid rent, or other charges for which the deposit may be lawfully retained. Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 274 S.E.2d 620 (1980).

Trial court properly awarded treble damages and attorney fees since the court apparently determined that landlords improperly withheld $305 of tenant's $450 security deposit and the court apparently allowed the landlords to retain $145 of the tenant's security deposit as rent owing to the landlords. Pleasant v. Luther, 195 Ga. App. 889, 395 S.E.2d 79 (1990).

Tenant's retention of an uncashed security deposit check from the landlord for a period of approximately two weeks pending a scheduled trial date did not manifest an acceptance of it in satisfaction of the tenant's claim for treble damages since the tenant did not acknowledge receipt and retention of the check and had promptly indicated the tenant's rejection of the settlement offer by filing an objection to proposed dismissal of the case. Mehavier v. Tahamtan, 198 Ga. App. 807, 403 S.E.2d 92 (1991).

- By filing a motion requesting the court to award attorney fees under O.C.G.A. § 44-7-35, defendant waived defendant's right to a jury trial on this issue; but since it was clear from the trial court's order that the court failed to hear any evidence on this issue, the court was directed to hear evidence as to reasonable attorney fees. Jackson v. Patton, 157 Ga. App. 410, 277 S.E.2d 769 (1981).

- Denial of attorney fees in the case of an award of damages due to a landlord's failure to return a tenant's security deposit was appropriate since the evidence was inadequate to show what portion of the fees was allocable to the damages award. Augusta Tennis Club, Inc. v. Leger, 186 Ga. App. 440, 367 S.E.2d 263 (1988).

- In a suit for return of a security deposit, the jury's award of treble damages to the tenant made clear the jury's finding of intentional withholding and, thus, the trial court could not deny the tenant an award of attorney's fees. Preece v. Turman Realty Co., 228 Ga. App. 609, 492 S.E.2d 342 (1997).

Cited in Chrietzberg v. Kristopher Woods, Ltd., 162 Ga. App. 517, 292 S.E.2d 100 (1982); McKay v. Nally, 173 Ga. App. 372, 326 S.E.2d 560 (1985); Reid v. Reid, 348 Ga. App. 550, 823 S.E.2d 860 (2019), cert. denied, No. S19C0832, 2019 Ga. LEXIS 689 (Ga. 2019).