2020 Georgia Code
Title 44 - Property
Chapter 7 - Landlord and Tenant
Article 3 - Dispossessory Proceedings


Law reviews.

- For note on the 1994 amendments of Code Sections 44-7-53, 44-7-55 to 44-7-56 of this article, see 11 Ga. St. U.L. Rev. 246 (1994).

JUDICIAL DECISIONS

Legislative intent.

- A close reading of O.C.G.A. Art. 3, Ch. 7, T. 44 indicates that intent of legislature was to provide landlord with means to regain possession of premises from tenant who fails to make timely payment of rent. Perimeter Mall v. Retail Sense, Inc., 162 Ga. App. 465, 291 S.E.2d 392 (1982).

Exclusivity of remedy.

- Summary proceedings here provided are the only lawful manner by which a tenant may be summarily and forcibly evicted. Ralls v. E.R. Taylor Auto Co., 202 Ga. 107, 42 S.E.2d 446 (1947).

Applicability of this article.

- Former Code 1933, § 61-301 et seq. (see O.C.G.A. Art. 3, Ch. 7, T. 44) did not apply when the tenant had already relinquished control of the property. Spitzer v. Selig Enters., Inc., 140 Ga. App. 156, 230 S.E.2d 121 (1976).

Amendment of counterclaim by tenant.

- Tenant's claim in a dispossessory proceeding that a leased building was in gross disrepair and that part of the terms of the tenancy had been that no rent would be due until the landlord made repairs does not constitute a counterclaim that may be amended. Trust Co. Bank v. Shaw, 186 Ga. App. 347, 367 S.E.2d 82 (1988).

Tenant refusing to relinquish possession.

- Former Code 1933, § 61-301 et seq. (see O.C.G.A. Art. 3, Ch. 7, T. 44) obviously concerns itself with those tenants who refuse to relinquish possession of property after their right of possession has expired either by termination of lease or by failure to pay rental. Spitzer v. Selig Enters., Inc., 140 Ga. App. 156, 230 S.E.2d 121 (1976).

Issue is tenancy or no tenancy.

- In a dispossessory proceeding, the issue is tenancy or no tenancy. Miron Motel, Inc. v. Smith, 211 Ga. 864, 89 S.E.2d 643 (1955).

Relationship of landlord and tenant required.

- Statutory proceeding authorized by dispossessory proceedings cannot be maintained against a person in possession of premises unless the relation of landlord and tenant exists between the parties. Atlantic Life Ins. Co. v. Ryals, 48 Ga. App. 793, 173 S.E. 875 (1934); Hightower v. Phillips, 184 Ga. 532, 192 S.E. 26 (1937); Fountain v. Davis, 71 Ga. App. 1, 29 S.E.2d 798 (1944); Crain v. Daniel, 79 Ga. App. 647, 54 S.E.2d 487 (1949).

When the parties are in agreement that the document between the parties relating to a mobile home was a sales contract, not a lease, since the absence of a landlord-tenant relationship between the parties is uncontroverted, no question of fact exists that defendant's use of the dispossessory statute was wrongful since the relationship of landlord and tenant must exist before dispossessory proceedings can be held. Sanders v. Hughes, 183 Ga. App. 601, 359 S.E.2d 396, cert. denied, 183 Ga. App. 907, 359 S.E.2d 396 (1987).

Plaintiff may not assert noncompliance with statute in attacking an eviction proceeding, since under Georgia law, it is clear that the person in possession was not a tenant. Parrott v. Wilson, 707 F.2d 1262 (11th Cir.), cert. denied, 464 U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983) (failure to give formerly required three-day notice prior to eviction).

All related claims to be determined, including rent due.

- Law intends for all related claims between the landlord and the tenant to be determinable in the dispossessory proceeding; and the law intends specifically to enable the landlord to collect the rent due the landlord, but the landlord must ask for the rent. Leverette v. Moran, 153 Ga. App. 825, 266 S.E.2d 574 (1980).

Jurisdiction of contested action.

- When a default is properly opened and the dispossessory action becomes contested, a justice of the peace loses jurisdiction over the action and is required to transfer the case to a court of record. Lamb v. Housing Auth., 146 Ga. App. 786, 247 S.E.2d 597 (1978).

Demand for possession required.

- Proper demand for possession is a condition precedent to the right of a landlord to dispossess. Whipper v. Kirk, 156 Ga. App. 218, 274 S.E.2d 662 (1980).

When demand for possession made.

- Demand for possession should be made upon or after the termination of the lease contract. Whipper v. Kirk, 156 Ga. App. 218, 274 S.E.2d 662 (1980).

Application of declaratory judgment statute.

- Declaratory judgment statute does not purport to reach back and nullify the rights, remedies, and penalties in favor of landlords which have already accrued provided by statutory provisions, relating to dispossessory warrants when the tenant is already in default; this is true because a court will not take jurisdiction to render a declaratory judgment where another statutory remedy has been especially provided for the character of case presented, if the effect would be to interfere with the right of the parties to appeal to the court given jurisdiction in that particular matter by the statute. Shippen v. Folsom, 200 Ga. 58, 35 S.E.2d 915 (1945).

Contracting to avoid statutory requirements.

- Landlord may not avoid in any lease "for the use or rental of real property as a dwelling place" any of the requirements set forth in former Code 1933, § 61-301 et seq. (see O.C.G.A. Art. 3, Ch. 7, T. 44); however, the landlord may contract to avoid these statutory requirements when renting property which was not to be used as a dwelling place. Colonial Self Storage of S.E., Inc. v. Concord Properties, Inc., 147 Ga. App. 493, 249 S.E.2d 310 (1978); Wilkerson v. Chattahoochee Parks, 244 Ga. 472, 260 S.E.2d 867 (1979); Guthrie v. Pilgrim Realty Co., 155 Ga. App. 692, 275 S.E.2d 686 (1980).

Purchaser of land from a landlord during the term of a tenant has the same right to dispossess the tenant for the failure to pay the rent as required by the terms of the lease that the original landlord had. Haynie v. Murray, 74 Ga. App. 253, 39 S.E.2d 567 (1946).

Grantor remaining in possession.

- When a security deed provides that, in case of a sale under the power contained in the deed, the grantor or any person in possession under the grantor "shall then become and be tenants holding over and shall forthwith deliver possession to the purchaser at such sale or be summarily dispossessed in accordance with the provisions of law applicable to the tenants holding over," the purchaser at such sale may bring proceedings against the grantor. Redwine v. Frizzell, 184 Ga. 230, 190 S.E. 789 (1937).

Cited in Jones Mercantile Co. v. Smith, 44 F.2d 168 (5th Cir. 1930); Reardon v. Bland, 206 Ga. 633, 58 S.E.2d 377 (1950); Reeves v. Reeves, 217 Ga. 348, 122 S.E.2d 229 (1961); McBride v. Distinctive Food & Entertainment Corp., 133 Ga. App. 424, 211 S.E.2d 28 (1974); Hill v. Hill, 143 Ga. App. 549, 239 S.E.2d 154 (1977); Mathews v. Fidelcor Mtg. Corp., 144 Ga. App. 140, 240 S.E.2d 758 (1977); American Key Corp. v. Metropolitan Atlanta Rapid Transit Auth., 150 Ga. App. 21, 256 S.E.2d 618 (1979); Bradley v. Godwin, 152 Ga. App. 782, 264 S.E.2d 262 (1979); Walters v. Chevron U.S.A., Inc., 154 Ga. App. 636, 269 S.E.2d 495 (1980); Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980); Omni Int'l, Ltd. v. Mimi's of Atlanta, Inc., 5 Bankr. 623 (N.D. Ga. 1980); Williams-East, Inc. v. Weeks, 156 Ga. App. 861, 275 S.E.2d 801 (1981); Barkley-Cupit Enters., Inc. v. Equitable Life Assurance Soc'y, 157 Ga. App. 138, 276 S.E.2d 650 (1981).

OPINIONS OF THE ATTORNEY GENERAL

Dispossessory proceeding is not a civil action but is merely a summary process setting forth the procedure for the disposition of the property pending trial of any contested issues. 1979 Op. Att'y Gen. No. U79-7.

RESEARCH REFERENCES

ALR.

- Judgment for rent for particular period as bar to action for rent for subsequent period, 42 A.L.R. 128.

Construction and effect of provisions of lease as to rights or remedies in event of tenant's failure to vacate, 71 A.L.R. 1448.

Rights of tenant who holds over after expiration of term with consent of the then owner as against mortgagee or lienor pending the original term, or their successors in interest, 98 A.L.R. 216.

Notice by landlord of change in rent or other modification of tenancy as affecting rights and liabilities incident to tenant's holding over after expiration of term or rent period or time fixed by notice, 109 A.L.R. 197.

Tenant's or subtenant's right to damages for claimed constructive eviction or breach of covenant based upon notice to tenant to vacate or other termination notice, 14 A.L.R.2d 1450.

Landlord's consent to extension or renewal of lease as shown by acceptance of rent from tenant holding over, 45 A.L.R.2d 827.

Binding effect on tenant holding over of covenants in expired lease, 49 A.L.R.2d 480.

Estoppel of lessee, because of occupancy of, or other activities in connection with, premises, to assert invalidity of lease because of irregularities in description or defects in execution, 84 A.L.R.2d 920.

Time within which tenant must yield or abandon premises after claimed constructive eviction, 91 A.L.R.2d 638.

Infestation of leased dwelling or apartment with vermin as entitling tenant to abandon premises or as constructive eviction by landlord, in absence of express covenant of habitability, 27 A.L.R.3d 924.

Lessor's retention of past-due rental payments as precluding termination of lease and dispossession of lessee for nonpayment of rent, 39 A.L.R.4th 1204.

What constitutes tenant's holding over leased premises, 13 A.L.R.5th 169.

Excessiveness or inadequacy of punitive damages in cases not involving personal injury or death, 14 A.L.R.5th 242.

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