2020 Georgia Code
Title 44 - Property
Chapter 7 - Landlord and Tenant
Article 3 - Dispossessory Proceedings
§ 44-7-50. Demand for Possession; Procedure Upon a Tenant's Refusal; Concurrent Issuance of Federal Lease Termination Notice

1. In all cases when a tenant holds possession of lands or tenements over and beyond the term for which they were rented or leased to such tenant or fails to pay the rent when it becomes due and in all cases when 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 such lands or tenements desires possession of such lands or tenements, such 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 such owner may immediately 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.
2. 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.

(Laws 1827, Cobb's 1851 Digest, p. 901; Ga. L. 1853-54, p. 52, § 4; Ga. L. 1853-54, p. 55, § 1; Ga. L. 1855-56, p. 268, § 1; Code 1863, § 3983; Ga. L. 1865-66, p. 34, § 1; Code 1868, § 4005; Code 1873, § 4077; Code 1882, § 4077; Civil Code 1895, § 4813; Civil Code 1910, § 5385; Code 1933, § 61-301; Ga. L. 1982, p. 1228, § 1; Ga. L. 1983, p. 884, § 4-1; Ga. L. 1984, p. 892, § 1; Ga. L. 1986, p. 1446, § 9; Ga. L. 1995, p. 577, § 1; Ga. L. 2006, p. 656, § 1.1/HB 1273; Ga. L. 2016, p. 8, § 3/SB 255; Ga. L. 2018, p. 820, § 8/SB 194.)

The 2016 amendment, effective May 12, 2016, substituted "Code Section 18-4-3" for "Code Section 18-4-61, relating to garnishment affidavits" at the end of subsection (a).

The 2018 amendment, effective May 8, 2018, in subsection (a), substituted "such" for "the" throughout, substituted "when" for "where" twice in the first sentence, and deleted ", subject to the same requirements for judicial approval specified in Code Section 18-4-3" following "notary public" at the end of the last sentence.

- For article, "Distress and Dispossessory Warrants in Georgia," see 12 Ga. B.J. 266 (1950). For article surveying real property law, see 34 Mercer L. Rev. 255 (1982). For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998). For comment on Wilensky v. Agoos, 74 Ga. App. 815, 41 S.E.2d 565 (1947), see 10 Ga. B.J. 109 (1947).

ANALYSIS

• General Consideration
• When Remedy Available
• Demand for Possession
• Affidavit
• Defenses
• Tort Liability of Landlord
• Procedural Matters
• Miscellaneous Considerations

For history and general consideration of this statute, see Huff v. Markham, 70 Ga. 284 (1883); Hicks v. Beacham, 136 Ga. 89, 62 S.E. 45 (1908); Carter v. Sutton, 147 Ga. 496, 94 S.E. 760 (1917); Shehane v. Eberhart, 30 Ga. App. 265, 117 S.E. 675 (1923), rev'd, 158 Ga. 743, 124 S.E. 527, answer conformed to, 33 Ga. App. 23, 125 S.E. 506 (1924) (see O.C.G.A. § 44-7-50).

- Since this statute merely provides for the making of an affidavit before the justice of the peace in dispossessory proceedings, and any contested issue is transferred to a court of record for trial, there can be no conflict between this statute and the Constitution. Lopez v. Dlearo, 232 Ga. 339, 206 S.E.2d 454 (1974) (see O.C.G.A. § 44-7-50).

- Dispossessory proceeding is statutory and must be strictly construed and observed. Young v. Cowles, 128 Ga. App. 770, 197 S.E.2d 864 (1973).

- Statute does not provide for the trial of title to land. Its sole purpose is the determination of the right of possession between a person claiming to be a landlord and one whom the landlord claims to be the landlord's tenant. Jordan v. Jordan, 103 Ga. 482, 30 S.E. 265 (1898); Willis v. Harrell, 118 Ga. 906, 45 S.E. 794 (1903); Bullard v. Hudson, 125 Ga. 393, 54 S.E. 132 (1906); Boatright v. Eason, 24 Ga. App. 364, 100 S.E. 764 (1919). See also Cassidy v. Clark, 62 Ga. 412 (1879); Hicks v. Beacham, 136 Ga. 89, 62 S.E. 45 (1908); Tatum v. Padrosa, 24 Ga. App. 259, 100 S.E. 653 (1919); Griffeth v. Wilmore, 46 Ga. App. 96, 166 S.E. 673 (1932); Jones v. Windham, 176 Ga. 619, 168 S.E. 6 (1933); Fitzgerald Trust Co. v. Shepard, 60 Ga. App. 674, 4 S.E.2d 689 (1939) (see O.C.G.A. § 44-7-50).

An attack on plaintiff's title to the premises is not permissible in a proceeding for possession under the dispossessory statutes. Roberts v. Collins, 199 Ga. App. 614, 405 S.E.2d 508 (1991).

Jury could reasonably conclude that the defendant deputy was never a tenant at sufferance after the foreclosure of the deputy's home had been finalized, and the deputy, not the plaintiffs, was the intruder when the deputy arrested the plaintiffs there. When the deputy relinquished possession of the property to move in with family members elsewhere, the deputy ceased being a tenant at sufferance. Carter v. Butts Cnty., 821 F.3d 1310 (11th Cir. 2016).

- Dispossessory proceeding is one primarily for the recovery of the possession of land. Roland v. Floyd, 53 Ga. App. 282, 185 S.E. 580 (1936).

- Dispossessory warrant is a summary statutory proceeding by a landlord to obtain possession of premises from the landlord's tenant, and the landlord's purpose is not to collect rent claimed to be due but to determine the right of possession to the premises between landlord and tenant. Healey Real Estate & Imp. Co. v. Wilson, 74 Ga. App. 63, 38 S.E.2d 747 (1946); Wilson v. Healey Real Estate & Imp. Co., 203 Ga. 52, 45 S.E.2d 656 (1947). But see Leverette v. Moran, 153 Ga. App. 825, 266 S.E.2d 574 (1980).

Former Code 1933, § 61-301 (see O.C.G.A. § 44-7-50) did not impose a requirement that the landlord terminate the lease before instituting dispossessory proceedings if the landlord did so solely on the basis of nonpayment of rent; rather, a close reading of former Code 1933, § 61-301 et seq. (see O.C.G.A. Art. 3, Ch. 7, T. 44) indicated that the intent of the legislature was to provide a landlord with a means to regain possession of premises from a tenant who fails to make timely payment of rent. Failure to pay rent is a separate ground from that of holding over beyond the term, and it may exist during the term. Metro Mgt. Co. v. Parker, 247 Ga. 625, 278 S.E.2d 643 (1981).

- O.C.G.A. § 44-7-50 provides an additional right or benefit to landlords as a class, and whether or not a landlord wishes to implement the statutorily provided procedure or waive the benefit of the statute is a matter purely within the landlord's discretion. Price v. Age, Ltd., 194 Ga. App. 141, 390 S.E.2d 242 (1990).

Landlord is not required to activate the termination provisions in a lease in order to institute dispossessory proceedings against a tenant on the basis of nonpayment of rent, and the statutory remedy may be exercised at any time the landlord sees fit to use the remedy. Price v. Age, Ltd., 194 Ga. App. 141, 390 S.E.2d 242 (1990).

- Statute is one providing an additional right or benefit to landlords as a class, and whether or not the landlord wishes to waive this benefit is a matter purely within the landlord's discretion. Once the landlord has done so, the landlord cannot thereafter complain that the landlord is being deprived of a right conferred on the landlord by statute. Holden v. Royal Mfg. Co., 79 Ga. App. 767, 54 S.E.2d 317 (1949) (see O.C.G.A. § 44-7-50).

- Issue made under this statute is tenancy or no tenancy, and the question of the plaintiff's title is not involved. Patrick v. Cobb, 122 Ga. 80, 49 S.E. 806 (1905); Downs v. Weaver, 184 Ga. 856, 193 S.E. 858 (1937); Fitzgerald Trust Co. v. Shepard, 60 Ga. App. 674, 4 S.E.2d 689 (1939) (see O.C.G.A. § 44-7-50).

- Tenancy at sufferance exists when a wrongdoer is in possession without the consent of the landlord, but as a result of the landlord's laches or neglect. Thrift v. Schurr, 52 Ga. App. 314, 183 S.E. 195 (1935); Price v. Bloodworth, 55 Ga. App. 268, 189 S.E. 925 (1937).

An estate at sufferance exists when one comes into possession of land by lawful title but keeps the landlord afterward without any title at all. Williams v. Durham, 77 Ga. App. 840, 50 S.E.2d 373 (1948); Hunter v. Ranitz, 88 Ga. App. 182, 76 S.E.2d 542 (1953); Kenner v. Kenner, 92 Ga. App. 851, 90 S.E.2d 33 (1955).

Tenancy at will is based on the consent of the landlord, either express or implied. Thrift v. Schurr, 52 Ga. App. 314, 183 S.E. 195 (1935); Price v. Bloodworth, 55 Ga. App. 268, 189 S.E. 925 (1937).

- Tenant at will is in possession by right with the consent of the landlord, either express or implied; a tenant at sufferance is a wrongdoer and is in possession without the consent of the landlord, but as a result of the landlord's laches or neglect. Willis v. Harrell, 118 Ga. 906, 45 S.E. 794 (1903). See also Godfrey v. Walker, 42 Ga. 562 (1871); Weed v. Lindsay & Morgan, 88 Ga. 686, 15 S.E. 836, 20 L.R.A. 33 (1892); Henry v. Perry, 110 Ga. 630, 36 S.E. 87 (1900); Salas v. Davis, 120 Ga. 95, 47 S.E. 644 (1904); Purtell v. Farris, 137 Ga. 318, 73 S.E. 634 (1912); Stanley v. Stembridge, 140 Ga. 750, 79 S.E. 842 (1913).

- Dispossessory warrants used in dispossessing tenants holding over, and warrants for the ejection of intruders, are different only insofar as their specific purposes are concerned, such difference depending on the relationship between the parties. Their natures and the ultimate ends the warrants accomplish are the same, the dispossession of one in favor of another who is legally entitled to the possession. Dantley v. Burge, 88 Ga. App. 478, 77 S.E.2d 107 (1953).

- Statute does not affect the law as to the issuance of distress warrants. Beall v. Hill, 42 Ga. 172 (1871) (see O.C.G.A. § 44-7-50).

- State courts are explicitly conferred with subject matter jurisdiction over dispossessory actions. Tauber v. Community Ctrs. Two, 235 Ga. App. 705, 509 S.E.2d 662 (1998), recons. denied, overruled on other grounds by Bowen v. Savoy, 2020 Ga. LEXIS 133 (Ga. 2020).

Trial court had jurisdiction over actions for nonpayment of rent and for holding over; however, it was not necessary to determine whether the trial court exceeded the court's jurisdiction in the landlord's dispossessory action against the tenant in possession of the land, as the trial court erred as a matter of law in denying the landlord's motion for a new trial. SBP Mgmt., LLC v. Price, 277 Ga. App. 130, 625 S.E.2d 523 (2006).

In a case in which: (1) a lender foreclosed on real property; (2) the lender filed a dispossessory warrant in state court pursuant to O.C.G.A. § 44-7-50; (3) a resident of the property petitioned for removal to federal court; and (4) the lender filed an emergency motion to remand the case back to state court, the district court lacked federal question jurisdiction. No federal law or authority was invoked on the face of the dispossessory warrant; thus, the dispossessory claim that formed the basis of the action was exclusively a matter of state law even though the resident argued that Georgia's dispossessory process violated the resident's rights under the U.S. Constitution. Further, jurisdiction did not exist based on diversity as the resident failed to establish that the parties were diverse and that the amount in controversy, as viewed from the lender's perspective, had been met; the lender's claim seeking only ejectment in a dispossessory action could not be reduced to a monetary sum for purposes of determining the amount in controversy. Citimortgage, Inc. v. Dhinoja, F. Supp. 2d (N.D. Ga. Apr. 13, 2010).

Because a tenant's petition to remove under 28 U.S.C. § 1446 was untimely, the trial court retained jurisdiction of the dispossessory proceeding; the tenant was served with the dispossessory affidavit and summons but the tenant did not file the tenant's motion for petition for removal until more than 30 days later. Lingo v. Smith, 316 Ga. App. 164, 729 S.E.2d 18 (2012).

Magistrate court had jurisdiction over dispossessory proceedings involving a property owner who, by remaining in possession of the premises after a lawful foreclosure of the owner's deed to secure debt, became a tenant at sufferance and subject to summary dispossession by the purchaser at the foreclosure sale. California Fed. Sav. & Loan Ass'n v. Day, 193 Ga. App. 690, 388 S.E.2d 727 (1989).

- In a dispossessory proceeding by the landlord to recover land from the tenant, as one holding over, if the jury should find that the tenant was rightfully in possession of the property under a parol contract, the jury must find a verdict for the defendant, and the jury would not be authorized to find for the plaintiff for rent admitted by the defendant to be paid under the contract. Roland v. Floyd, 53 Ga. App. 282, 185 S.E. 580 (1936).

Tender of payment is equivalent to payment. Arnold v. Selman, 83 Ga. App. 145, 62 S.E.2d 915 (1951).

- Landlord who seeks forcibly to evict a tenant by extralegal means may be liable to the tenant in damages, notwithstanding that the tenant is behind in rental payments; whether a tenant was constructively evicted when landlord turned off water was a jury question. Roberts v. Roberts, 205 Ga. App. 371, 422 S.E.2d 253 (1992).

Landlord was entitled to rely upon the default provisions in the commercial lease agreement, which gave the landlord the right to reenter and take possession without notice or resort to legal proceedings, and the landlord acted pursuant to the terms of the lease in reentering and taking possession of the premises for rerental upon default by the tenants for nonpayment of rent; accordingly, the trial court properly granted summary judgment in favor of the landlord on the tenant's claim for trespass, breach of the implied covenant of quiet enjoyment of the premises, and breach of the terms of the lease agreement. Rucker v. Wynn, 212 Ga. App. 69, 441 S.E.2d 417 (1994), overruled on other grounds by George v. Hercules Real Estate Servs., 795 S.E.2d 81 (Ga. Ct. App. 2016).

- Bank, which was the legal title holder of the foreclosed property, had the duty to comply with the statutory dispossessory procedures imposed upon the bank and could not be delegated to a third party hired by the bank to ensure the condition of the foreclosed home. Furthermore, there was no evidence that the bank ever sought to accomplish the bank's statutory duties through an agent by contracting with the third party to file a dispossessory action against the plaintiffs, the former property owners, on the bank's behalf. It follows that as undisputed independent contractors the third parties had no separate legal duty to file a dispossessory action and then comply with the statutory procedures applicable in such an action; thus, the plaintiffs could not succeed on wrongful eviction and trespass claims. Ikomoni v. Exec. Asset Mgmt., LLC, 309 Ga. App. 81, 709 S.E.2d 282 (2011).

Cited in Culpepper v. Cunningham, 142 Ga. 164, 82 S.E. 549 (1914); Williams v. Federal Land Bank, 44 Ga. App. 606, 162 S.E. 408 (1932); Heaton v. Fulton Nat'l Bank, 46 Ga. App. 773, 169 S.E. 216 (1933); Whitson v. City of Atlanta, 177 Ga. 666, 170 S.E. 888 (1933); Lovell v. Federal Land Bank, 178 Ga. 578, 173 S.E. 390 (1934); Justice v. Warner, 178 Ga. 579, 173 S.E. 703 (1934); Burt v. Crawford, 180 Ga. 331, 179 S.E. 82 (1935); Ford v. Eskridge, 53 Ga. App. 466, 186 S.E. 204 (1936); Sinclair Ref. Co. v. Giddens, 54 Ga. App. 69, 187 S.E. 201 (1936); West v. Flynn Realty Co., 54 Ga. App. 523, 188 S.E. 468 (1936); Johnson v. Reed, 56 Ga. App. 658, 193 S.E. 472 (1937); Neely v. Sheppard, 185 Ga. 771, 196 S.E. 452 (1938); Frazier v. Beasley, 186 Ga. 861, 199 S.E. 194 (1938); Morgan v. Fidelity Trust Co., 65 Ga. App. 873, 16 S.E.2d 522 (1941); Akers v. Kinney, 73 Ga. App. 456, 36 S.E.2d 844 (1946); Cartey v. Swain, 76 Ga. App. 320, 45 S.E.2d 822 (1947); Smith v. R.F. Brodegaard & Co., 77 Ga. App. 661, 49 S.E.2d 500 (1948); Arnold v. Selman, 83 Ga. App. 145, 62 S.E.2d 915 (1951); Estridge v. Janko, 96 Ga. App. 246, 99 S.E.2d 682 (1957); Goff v. Cooper, 110 Ga. App. 339, 138 S.E.2d 449 (1964); Smith v. Allen, 115 Ga. App. 80, 153 S.E.2d 648 (1967); Williams v. Housing Auth., 223 Ga. 407, 155 S.E.2d 923 (1967); Sanks v. Georgia, 401 U.S. 144, 91 S. Ct. 593, 27 L. Ed. 2d 741 (1971); Wilson v. Lee, 129 Ga. App. 647, 200 S.E.2d 480 (1973); Browning v. F.E. Fortenberry & Sons, 131 Ga. App. 498, 206 S.E.2d 101 (1974); First Fed. Sav. & Loan Ass'n v. Shepherd, 131 Ga. App. 692, 206 S.E.2d 571 (1974); Van Schallern v. Stanco, 132 Ga. App. 794, 209 S.E.2d 243 (1974); Lunsford Co. v. Klingenberg, 138 Ga. App. 791, 227 S.E.2d 507 (1976); Evans v. Equico Lessors, 140 Ga. App. 583, 231 S.E.2d 534 (1976); Jordan v. Ford Motor Credit Co., 141 Ga. App. 280, 233 S.E.2d 256 (1977); Lipshutz v. Shantha, 144 Ga. App. 196, 240 S.E.2d 738 (1977); Burger King Corp. v. Garrick, 149 Ga. App. 186, 253 S.E.2d 852 (1979); Bates v. Chevron U.S.A., Inc., 151 Ga. App. 544, 260 S.E.2d 367 (1979); Lamb v. Sims, 153 Ga. App. 556, 265 S.E.2d 879 (1980); Proffitt v. Housing Sys., 154 Ga. App. 114, 267 S.E.2d 650 (1980); Peter E. Blum & Co. v. First Bank Bldg. Corp., 156 Ga. App. 680, 275 S.E.2d 751 (1980); Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980); Remy v. Citicorp Person-to-Person Fin. Ctr., Inc., 159 Ga. App. 726, 285 S.E.2d 76 (1981); Stephens v. Housing Auth., 163 Ga. App. 97, 293 S.E.2d 53 (1982); C & A Land Co. v. Rudolf Inv. Corp., 163 Ga. App. 832, 296 S.E.2d 149 (1982); Housing Auth. v. Sterlin, 250 Ga. 95, 296 S.E.2d 564 (1982); Housing Auth. v. Hudson, 250 Ga. 109, 296 S.E.2d 558 (1982); McKinnon v. Shoemaker, 166 Ga. App. 231, 303 S.E.2d 770 (1983); Virginia Highland Assocs. v. Allen, 174 Ga. App. 706, 330 S.E.2d 892 (1985); Skelton v. Hill Aircraft & Leasing Corp., 175 Ga. App. 152, 333 S.E.2d 15 (1985); Ranger v. First Family Mtg. Corp., 176 Ga. App. 715, 337 S.E.2d 388 (1985); Bentley-Kessinger, Inc. v. Jones, 186 Ga. App. 466, 367 S.E.2d 317 (1988); Dykes v. Federal Land Bank, 189 Ga. App. 771, 377 S.E.2d 537 (1989); Dodson v. Farm & Home Sav. Assoc., 208 Ga. App. 568, 430 S.E.2d 880 (1993); Walters v. Betts, 174 Bankr. 636 (Bankr. N.D. Ga. 1994); Solomon v. Norwest Mortg. Corp., 245 Ga. App. 875, 538 S.E.2d 783 (2000); Wilbanks v. Arthur, 257 Ga. App. 226, 570 S.E.2d 664 (2002); GMC Group, Inc. v. Harsco Corp., 293 Ga. App. 707, 667 S.E.2d 916 (2008).

When Remedy Available

In general.

- Tenancy such as will authorize the remedy may exist either where the tenant fails to pay rent when due under an express agreement with the landlord, when the tenant holds possession beyond the terms of the tenant's lease, or when the tenant holds possession as a tenant at will or sufferance, whether under contract of rent or not. Thrift v. Schurr, 52 Ga. App. 314, 183 S.E. 195 (1935); Price v. Bloodworth, 55 Ga. App. 268, 189 S.E. 925 (1937); Cunningham v. Moore, 60 Ga. App. 850, 5 S.E.2d 71 (1939).

- Landlord's right of dispossession for nonpayment of rent exists apart from any right the landlord may have under the lease to terminate the lease for nonpayment of rent. Perimeter Mall v. Retail Sense, Inc., 162 Ga. App. 465, 291 S.E.2d 392 (1982).

When a valid lease exists which does not expressly waive right to dispossess tenant for nonpayment of rent, the landlord may, when rent is due and unpaid, seek dispossession by filing sworn statement of these facts in proper court. Perimeter Mall v. Retail Sense, Inc., 162 Ga. App. 465, 291 S.E.2d 392 (1982).

When a landlord chose to pursue the legislatively-provided dispossessory remedy rather than the contract-provided termination remedy, a notice provision in the lease did not have to be fulfilled because the lease did not expressly waive the statutory right. May v. Poole, 174 Ga. App. 224, 329 S.E.2d 561 (1985).

Motive of the landlord in seeking possession of the landlord's property is immaterial. Williams v. Housing Auth., 158 Ga. App. 734, 282 S.E.2d 141 (1981).

- Dispossessory warrant will lie only if the relation of landlord and tenant exists. If the defendant holds possession otherwise than as tenant, such as purchaser, donee, or equitable owner, this remedy is not applicable. Brown v. Persons, 48 Ga. 60 (1873); Cassidy v. Clark, 62 Ga. 412 (1879); Allread v. Harris, 75 Ga. 687 (1885); Watson v. Toliver, 103 Ga. 123, 29 S.E. 614 (1897); Williams v. Seale, 103 Ga. 801, 30 S.E. 644 (1898); Henry v. Perry, 110 Ga. 630, 36 S.E. 87 (1900); Sharpe v. Mathews, 123 Ga. 794, 51 S.E. 706 (1905); Bacon v. Howard, 19 Ga. App. 660, 91 S.E. 1066 (1917); Napier v. Varner, 149 Ga. 586, 101 S.E. 580 (1919); Edwards v. Blackshear, 24 Ga. App. 622, 101 S.E. 585 (1919); Spooner v. Shelfer, 152 Ga. 190, 108 S.E. 773 (1921); Allen v. Allen, 154 Ga. 581, 115 S.E. 17 (1922); Sloan v. Sheffield, 31 Ga. App. 437, 120 S.E. 795 (1923); Radcliffe v. Jones, 46 Ga. App. 33, 166 S.E. 450 (1932); Stephenson v. Kellett, 46 Ga. App. 27, 166 S.E. 457 (1932); Griffeth v. Wilmore, 46 Ga. App. 96, 166 S.E. 673 (1932); Thrift v. Schurr, 52 Ga. App. 314, 183 S.E. 195 (1935); Price v. Bloodworth, 55 Ga. App. 268, 189 S.E. 925 (1937); Patterson v. Baugh, 56 Ga. App. 660, 193 S.E. 364 (1937); Downs v. Weaver, 58 Ga. App. 259, 198 S.E. 292 (1938); Williams v. Stark, 75 Ga. App. 668, 44 S.E.2d 300 (1947); Carruth v. Carruth, 77 Ga. App. 131, 48 S.E.2d 387 (1948); Hunter v. Ranitz, 88 Ga. App. 182, 76 S.E.2d 542 (1953); Fountain v. Grant, 210 Ga. 78, 77 S.E.2d 721 (1953); Roberts v. Graham, 98 Ga. App. 309, 105 S.E.2d 801 (1958); Harold v. Modern Homes Constr. Co., 104 Ga. App. 415, 121 S.E.2d 809 (1961); Branch v. Wesav Fin. Corp., 198 Ga. App. 347, 401 S.E.2d 569 (1991).

- Although the relationship of landlord and tenant must exist before a dispossessory hearing can be held under O.C.G.A. § 44-7-50 et seq., the provisions of § 44-7-50 are clearly satisfied when the relationship between the parties is that of legal title holder and tenant at sufferance. Stevens v. Way, 167 Ga. App. 688, 307 S.E.2d 507 (1983); Browning v. Federal Home Loan Mtg. Corp., 210 Ga. App. 115, 435 S.E.2d 450 (1993); Good Ol' Days Commissary, Inc. v. Longcrier Family Ltd. Partnership I, 240 Ga. App. 111, 522 S.E.2d 249 (1999).

Trial court did not err in granting the creditor a writ of possession regarding the subject property because the debtors' legal right to possession of the property ended when the creditor became the legal title holder of the property as the purchaser at a foreclosure sale, and the debtors, as tenants at sufferance, were subject to being summarily dispossessed as a result. Bradley v. JPMorgan Chase Bank, 289 Ga. App. 704, 658 S.E.2d 240 (2008).

- When defendant contended that no landlord-tenant relationship was shown to exist between the parties, and that the action consequently should have been for ejectment pursuant to O.C.G.A. § 44-11-1, rather than for possession, pursuant to O.C.G.A. § 44-7-50, but defendant conceded that it had been defendant's intention to include the house in the property conveyed by security deed and the trial court was authorized to conclude from the evidence that the house was so included, it was held that when the defendant defaulted on the debt and the security deed was foreclosed upon, the relationship between the parties became that of landlord and tenant at sufferance. West v. VA, 182 Ga. App. 767, 357 S.E.2d 121 (1987).

- When proof of execution of a deed to secure a debt upon which landlord claimed ownership was necessary to establish a landlord-tenant relationship between parties in order to provide jurisdiction of a court in a dispossessory action, such proof of execution was properly before the court to preclude contrary assertions concerning execution by a homeowner in a subsequent action. Rutledge v. Colonial Fin. Servs., Inc., 173 Ga. App. 662, 327 S.E.2d 791 (1985).

- This remedy may be exercised at any time the landlord sees fit to use it. So long as the relation of landlord and tenant exists, the remedy is available; but if the relation be once destroyed, the remedy is no longer available. Willis v. Harrell, 118 Ga. 906, 45 S.E. 794 (1903). See also Godfrey v. Walker, 42 Ga. 562 (1871); Taylor v. West, 142 Ga. 193, 82 S.E. 518 (1914); Colvin v. Colvin, 24 Ga. App. 630, 101 S.E. 586 (1919).

- Agents, attorneys-in-fact, or attorneys-at-law may proceed for and in behalf of landlords against tenants to collect rent past due or to recover possession of the premises. Jackson v. Oliphant, 88 Ga. App. 313, 76 S.E.2d 625 (1953).

- In all cases when a tenant holding possession of land shall fail to pay the rent when the rent becomes due, the landlord is afforded a summary remedy for the tenant's eviction. Veal v. Jenkins, 58 Ga. App. 4, 197 S.E. 328 (1938).

- When the tenant is in arrears for rent, it is only necessary for the landlord to make affidavit of that fact and of a demand and refusal to deliver, whereupon the warrant issues. Bussell v. Swift, 50 Ga. App. 148, 177 S.E. 277 (1934); Craig v. Day, 92 Ga. App. 339, 88 S.E.2d 451 (1955).

- To dispossess a tenant for nonpayment of rent, proceedings must be begun by the landlord at a time when such rent is past due and unpaid. Yates v. Farmer, 102 Ga. App. 570, 117 S.E.2d 211 (1960).

- Party to a legal contract has the right to insist upon the contract's terms, and in refusing to accept the past due rent the landlord here was clearly within the landlord's rights, and the rent remained unpaid. In these circumstances the tenants were holding over, and the landlord had the right of immediate reentry and dispossession. Cunningham v. Moore, 60 Ga. App. 850, 5 S.E.2d 71 (1939).

- If the defendant was a tenant at sufferance, the dispossessory warrant was a proper remedy. Williams v. Durham, 77 Ga. App. 840, 50 S.E.2d 373 (1948).

- When, after the expiration and termination of a contract by which a person has occupied premises as a cropper and not as a tenant, the person continues in possession of the premises, but not as a cropper, the person occupies the premises as a tenant by sufferance, and can be summarily dispossessed. Malone v. Floyd, 50 Ga. App. 701, 179 S.E. 176 (1935).

- When title has been divested by a sale made pursuant to a power of sale given by the owner in a deed to the land to secure a debt, and the tenant thereafter remains in possession, the tenant is a tenant at sufferance of the purchaser, and may be summarily dispossessed. Anderson v. Watkins, 42 Ga. App. 319, 156 S.E. 43 (1930); Lowther v. Patton, 45 Ga. App. 543, 165 S.E. 487 (1932); Radcliffe v. Jones, 46 Ga. App. 33, 166 S.E. 450 (1932); Atlantic Life Ins. Co. v. Ryals, 48 Ga. App. 793, 173 S.E. 875 (1934); Price v. Bloodworth, 55 Ga. App. 268, 189 S.E. 925 (1937); Ray v. Holden, 62 Ga. App. 554, 8 S.E.2d 703 (1940); Hunter v. Ranitz, 88 Ga. App. 182, 76 S.E.2d 542 (1953); Harold v. Modern Homes Constr. Co., 104 Ga. App. 415, 121 S.E.2d 809 (1961).

- When lease did not provide any particular method for notification of the election to extend the lease, tenant who gave oral notification of the tenant's election prior to expiration of the original three-year term was in possession under the original written lease and was not a tenant at will who could be subject to disposition. Ask Enters., Inc. v. Johnson Model Bedding, Inc., 155 Ga. App. 294, 270 S.E.2d 709 (1980).

- One who obtains possession of the premises from the owner under an option to purchase is not a tenant upon one's failure to exercise the option, and a dispossessory proceeding will not lie to evict one therefrom. Griffeth v. Wilmore, 46 Ga. App. 96, 166 S.E. 673 (1932).

- When a father, who has possession of and title to certain realty, sells the legal title to his son, but remains in possession with his wife and daughter with no agreement or understanding with the son concerning the payment of rent on the premises, the father becomes the tenant at sufferance of the son; and, where, upon the death of the father, his wife and daughter remain in possession with no agreement or understanding with the son concerning their payment of rent, they succeed to the position of the father as tenants at sufferance of the son, and he may evict them by the summary proceeding for which provision is made in this statute. Kenner v. Kenner, 92 Ga. App. 851, 90 S.E.2d 33 (1955) (see O.C.G.A. § 44-7-50).

Trustees of unincorporated religious society, holding title in themselves to the society's real property, may bring a dispossessory proceeding through their secretary and agent against a tenant in possession of the property who is holding over and beyond the tenant's term and who refuses to pay rent. Godfrey v. Walker, 42 Ga. 562 (1871); Jackson v. Oliphant, 88 Ga. App. 313, 76 S.E.2d 625 (1953).

Purchaser of land from a landlord during the term of the tenant has the same right to dispossess the tenant that the landlord had. Morrow v. Sawyer, 82 Ga. 226, 8 S.E. 51 (1888); Hindman v. Raper, 143 Ga. 643, 85 S.E. 843 (1915); May v. McDaniel, 145 Ga. 160, 88 S.E. 934 (1916); Carlton v. Hibernia Sav., Bldg. & Loan Ass'n, 185 Ga. 425, 195 S.E. 764 (1938); Veal v. Jenkins, 58 Ga. App. 4, 197 S.E. 328 (1938); McKinney v. South Boston Sav. Bank, 156 Ga. App. 114, 274 S.E.2d 34 (1980).

- Lessee is not precluded from prosecuting a dispossessory warrant simply because the lessee is not the true owner of the premises. Empire Shoe Co. v. Regal Shoe Shops, 123 Ga. App. 796, 182 S.E.2d 796 (1971).

- When the parties at the time the demand for the possession is made are tenants in common, one having title and the other the right to occupy a part of the premises, neither of the tenants in common can legally obtain a dispossessory warrant for the removal of the other. Roberts v. Graham, 98 Ga. App. 309, 105 S.E.2d 801 (1958).

- When a landlord shows oneself to be entitled under the statute to the summary remedy of a dispossessory warrant one's motive in desiring possession is immaterial, and the fact that in the present case it was made to appear that the landlord had a prospect of leasing the premises to better advantage cannot alter or diminish one's statutory rights. Cunningham v. Moore, 60 Ga. App. 850, 5 S.E.2d 71 (1939).

- Remedy does not lie for a tenant's violation of a covenant not to sublet. Rakestraw v. Lubbock, 26 Ga. App. 330, 106 S.E. 190 (1921).

Demand for Possession

Necessity of demand for possession.

- Demand upon a tenant to deliver possession to the tenant's landlord is a condition precedent to the right of the landlord to dispossess the tenant summarily. Broadwell v. Maxwell, 30 Ga. App. 738, 119 S.E. 344 (1923). See also Willis v. Harrell, 118 Ga. 906, 45 S.E. 794 (1903); Talley v. Mitchell, 138 Ga. 392, 75 S.E. 465 (1912); Levens v. Arp, 23 Ga. App. 198, 97 S.E. 893 (1919); Beveridge v. Simmerville, 26 Ga. App. 373, 106 S.E. 212 (1921); Bussell v. Swift, 50 Ga. App. 148, 177 S.E. 277 (1934); Gilbert Hotel No. 22, Inc. v. Black, 67 Ga. App. 221, 19 S.E.2d 796 (1942); Jackson v. Hardin, 74 Ga. App. 39, 38 S.E.2d 695 (1946); Ginn v. Johnson, 74 Ga. App. 35, 38 S.E.2d 753 (1946); Oastler v. Wright, 201 Ga. App. 649, 40 S.E.2d 531 (1946); Wilensky v. Agoos, 74 Ga. App. 815, 41 S.E.2d 565 (1947); Jett v. Wolfe, 75 Ga. App. 155, 42 S.E.2d 505 (1947); Arnold v. Selman, 83 Ga. App. 145, 62 S.E.2d 915 (1950); Goolsby v. McNair, 97 Ga. App. 491, 103 S.E.2d 440 (1958); Terrell v. Griffith, 129 Ga. App. 675, 200 S.E.2d 485 (1973); Harkins v. Boyd, 136 Ga. App. 365, 221 S.E.2d 207 (1975); Wig Fashions, Inc. v. A-T-O Properties, Inc., 145 Ga. App. 325, 243 S.E.2d 526 (1978); Housing Auth. v. Berryhill, 146 Ga. App. 374, 246 S.E.2d 406 (1978); Metro Mgt. Co. v. Parker, 156 Ga. App. 686, 275 S.E.2d 827 (1980); Metro Mgt. Co. v. Parker, 247 Ga. 625, 278 S.E.2d 643 (1981); Booker v. Trizec Properties, Inc., 184 Ga. App. 782, 363 S.E.2d 13 (1987), cert. denied, 184 Ga. App. 909, 363 S.E.2d 13 (1988); Trumpet v. Brown, 215 Ga. App. 299, 450 S.E.2d 316 (1994) (see O.C.G.A. § 44-7-50).

- While demand for possession is a condition precedent to the institution of dispossessory proceedings, and although proof should be made, the dispossessory Code sections do not require prima-facie proof of demand for possession by the plaintiff as a statutory procedure. Able-Craft, Inc. v. Bradshaw, 167 Ga. App. 725, 307 S.E.2d 671 (1983).

- When a tenant had filed for bankruptcy and agreed in a bankruptcy consent order to vacate the premises by a specific date and to lift the automatic stay against any future dispossessory action by the landlord, the trial court could reasonably infer that the landlord had already made a demand for possession of the premises. Green Room, Inc. v. Confederation Life Ins. Co., 215 Ga. App. 221, 450 S.E.2d 290 (1994).

- In a case in which a landlord sought a dispossessory writ pursuant to O.C.G.A. § 44-7-50 in state court and the tenant removed the case to federal court, the landlord's motion to remand was granted because the complaint relied exclusively on state law, and thus did not satisfy the well-pleaded complaint rule, and the tenant failed to demonstrate grounds for the application of any exception to the well-pleaded complaint rule. Chase Manhattan Mortg. Corp. v. Gresham, F. Supp. 2d (N.D. Ga. Nov. 17, 2005).

- Two month's notice to a tenant at will to quit is an insufficient demand to comply with the requirements of this statute, nor will an agreement by the tenant with the landlord to vacate by a certain date operate in lieu of the demand required by the statute. Beveridge v. Simmerville, 26 Ga. App. 373, 106 S.E. 212 (1921); Ginn v. Johnson, 74 Ga. App. 35, 38 S.E.2d 753 (1946); Wilensky v. Agoos, 74 Ga. App. 815, 41 S.E.2d 565 (1947); Jett v. Wolfe, 75 Ga. App. 155, 42 S.E.2d 505 (1947) (see O.C.G.A. § 44-7-50).

Demand is sufficient notice to the tenant when the ground for the action is the nonpayment of rent due. Morris v. Battey, 28 Ga. App. 90, 110 S.E. 342 (1922).

Timely demand for possession is a condition precedent to the institution of dispossessory proceedings under O.C.G.A. § 44-7-50; a demand for payment of rent or a debt is not timely unless made after the rent or debt becomes due, and a demand for possession based on nonpayment of rent would not be timely under § 44-7-50 unless the rent had fallen due and the tenant had failed to make payment. Metro Mgt. Co. v. Parker, 247 Ga. 625, 278 S.E.2d 643 (1981).

Landlord's letter terminating the lease and instructing tenant "to vacate your premises as of the receipt of this letter," constituted a sufficient demand for possession, and was not rendered ineffective by also giving notice in the same document of demand for payment of notes given for back rent and attorney's fees and notice that attorney's fees would be demanded if not paid within ten days. Twin Tower Joint Venture v. American Mktg. & Communications Corp., 166 Ga. App. 364, 304 S.E.2d 493 (1983).

Certified letter of notice that tenant must surrender possession and quit the premises if rent due and owing is not paid within three days of the date of notice is a sufficient notice of demand for possession. Sandifer v. Long Investors, Inc., 211 Ga. App. 757, 440 S.E.2d 479 (1994).

When an eviction was carried out under a writ of possession, in compliance with statutory requirements, the writ was lawful until the writ was vacated, and an eviction that occurred before the writ was vacated was not wrongful; although the demand for possession misspelled the residential tenant's name as "Fennell" instead of "Fennelly," it was properly sent to the property address by certified mail. Fennelly v. Lyons, 333 Ga. App. 96, 775 S.E.2d 587 (2015).

- Demand for possession should have been made upon or after the termination of the lease contract. Edmondson v. White, 19 Ga. 534 (1856); Wilensky v. Agoos, 74 Ga. App. 815, 41 S.E.2d 565 (1947); Wig Fashions, Inc. v. A-T-O Properties, Inc., 145 Ga. App. 325, 243 S.E.2d 526 (1978).

- Demand by one alleging to be the agent of the landlord, where there is no contention that such person is not such agent of the landlord, is sufficient to meet the requirements of this statute. Bussell v. Swift, 50 Ga. App. 148, 177 S.E. 277 (1934) (see O.C.G.A. § 44-7-50).

- It is not necessary to prove a demand for the possession of the premises since it appears that the demand, if made, would have been refused. Craig v. Day, 92 Ga. App. 339, 88 S.E.2d 451 (1955); Kenner v. Kenner, 92 Ga. App. 851, 90 S.E.2d 33 (1955).

Demand for possession is a condition precedent to the right of the landlord to dispossess the tenant. It is not necessary, however, to prove a demand since it appears that if the demand is made it would be refused. Hyman v. Leathers, 168 Ga. App. 112, 308 S.E.2d 388 (1983); Henderson v. Colony W., Ltd., 175 Ga. App. 676, 332 S.E.2d 331 (1985).

- While the defendant did not deny in the defendant's counteraffidavit that a demand for possession had been made upon the defendant by the plaintiff prior to the issuance of the dispossessory warrant, and the defendant's failure to do so raised a presumption of law that such a demand was made, still such presumption must give way to the direct and positive testimony of the defendant on the trial that no demand was made upon the defendant for possession by anyone prior to the issuance of the dispossessory warrant. Ginn v. Johnson, 74 Ga. App. 35, 38 S.E.2d 753 (1946).

- When the testimony of defendant's agent established without any evidence to the contrary that the only demand for possession of the premises had been made on the previous tenant, not on defendant, the presumption raised by the allegation in the affidavit that demand was made was rebutted by direct and positive evidence, and the trial court erred by denying defendant's motion for directed verdict. Jet Air, Inc. v. Management/USA, Inc., 180 Ga. App. 648, 350 S.E.2d 40 (1986).

Notice of termination of lease by public housing authority could not also serve as a demand for possession under O.C.G.A. § 44-7-50, not because in every instance of nonpayment of rent the landlord must terminate the lease before making a demand for possession, but because under the federal regulations the landlord does not have the right to possession of the premises during the 14 day grace period; furthermore, the landlord is prohibited from taking any legal action against the tenant during this time, including making a demand for possession. Metro Mgt. Co. v. Parker, 247 Ga. 625, 278 S.E.2d 643 (1981).

If the ground for dispossession is nonpayment of rent, O.C.G.A. § 44-7-50 provides that a landlord may make a demand for possession when the tenant fails to pay the rent when due; this right exists apart from any right the landlord may have under a lease to terminate the lease for nonpayment of rent. Metro Mgt. Co. v. Parker, 247 Ga. 625, 278 S.E.2d 643 (1981).

If the ground for dispossession is that the tenant is a holdover, there is a requirement for termination of the lease simply to place the tenant in the status of a holdover; since this requirement for termination exists, it must occur prior to the demand for possession. Metro Mgt. Co. v. Parker, 247 Ga. 625, 278 S.E.2d 643 (1981).

Once the lease has been terminated, a tenant who refuses to vacate becomes a tenant holding over, and a demand for possession may properly be made on the tenant under O.C.G.A. § 44-7-50. Metro Mgt. Co. v. Parker, 247 Ga. 625, 278 S.E.2d 643 (1981).

When the landlord gave a notice to quit, the tenants were in a hold-over status when the landlord demanded possession of the property by letter, and the demand was timely made under O.C.G.A. § 44-7-50. Burns v. Reves, 217 Ga. App. 316, 457 S.E.2d 178 (1995).

Affidavit

1. Contents

- Sufficiency of an affidavit seeking a dispossessory warrant must be measured by the same strict rules applicable prior to the Civil Practice Act since the Act does not apply if in conflict with special statutory proceedings. Brinson v. Ingram, 120 Ga. App. 271, 170 S.E.2d 39 (1969).

Affidavit has to be sufficiently definite and certain in the description of the land to enable the sheriff to identify the premises. Brinson v. Ingram, 120 Ga. App. 271, 170 S.E.2d 39 (1969).

- When an affidavit under this statute alleging one ground for dispossessing a tenant is followed by the words "or/and" and then another ground, it is not a positive allegation of either ground, and is subject to an oral motion to dismiss. Ralls v. E.R. Taylor Auto Co., 75 Ga. App. 136, 42 S.E.2d 656 (1947); Saylor v. Williams, 93 Ga. App. 643, 92 S.E.2d 565 (1956); Brinson v. Ingram, 120 Ga. App. 271, 170 S.E.2d 39 (1969); Rinconcito Latino, Inc. v. Eriksson, 145 Ga. App. 340, 243 S.E.2d 721 (1978) (see O.C.G.A. § 44-7-50).

- Affidavit need not allege demand for rent. Colclough & Co. v. Mathis, 79 Ga. 394, 4 S.E. 762 (1887); Almand v. Scott & Co., 83 Ga. 402, 11 S.E. 653 (1889).

- Affidavit need not specify the amount of the rent unpaid. Lamar v. Sheppard, 84 Ga. 561, 10 S.E. 1084 (1890).

- Affidavit is amendable for such errors as the insertion of the tenant's name at a place where obviously the name of the landlord is intended. Lanier v. Kelly, 6 Ga. App. 738, 65 S.E. 692 (1909).

- Affidavit of the plaintiff, upon which the dispossessory warrant proceeding was founded, alleging as a basis for the issuing of such warrant, "that said tenant is holding said offices and premises over and beyond the term for which the same were rented or leased to him," fully complied with this statute and such affidavit was not subject to demurrer on the grounds that it did not allege the nature or character of the tenancy, whether it was a tenancy at will or a tenancy for a definite term, when the tenancy began or when the tenancy terminated, nor when or how demand for possession was made so as to enable the defendant to properly prepare for trial. Wilson v. Healey Real Estate & Imp. Co., 203 Ga. 52, 45 S.E.2d 656 (1947) (see O.C.G.A. § 44-7-50).

- When an affidavit is in strict accordance with this statute and there are no patent defects in the affidavit, its dismissal on the ground of patent defects apparent in the face of the paper is error. Hitch v. Frasier, 75 Ga. 880 (1885) (see O.C.G.A. § 44-7-50).

Any justice of peace may administer oath, not only the one of the district wherein the land lies. DuBignon v. Tufts, 66 Ga. 59 (1880); Fletcher v. Collins, 111 Ga. 253, 36 S.E. 646 (1900); Sistrunk v. State, 18 Ga. App. 42, 88 S.E. 796 (1916).

- Notaries public do not have authority to administer the oath required for an affidavit on which a dispossessory warrant is issued. Young v. Cowles, 128 Ga. App. 770, 197 S.E.2d 864 (1973).

- Oath required for the affidavit on which the dispossessory warrant is issued may be given only by a justice of the peace or a superior court judge, or such other judicial officer as may be authorized by law. The latter includes clerks and deputy clerks of the civil court of Fulton County. Young v. Cowles, 128 Ga. App. 770, 197 S.E.2d 864 (1973).

- Judges of the civil court of Fulton County are on a par with superior court judges or justices of the peace as to the issuance of dispossessory warrants, but the requirement that the affidavit be taken before the judge issuing the warrant must still be met. Young v. Cowles, 128 Ga. App. 770, 197 S.E.2d 864 (1973).

- Affidavit which under this statute is to be made "before the judge of the superior court or any justice of the peace," includes such other judicial officers as may be authorized by law, including judges of the state courts of each county. Howington v. W.H. Ferguson & Sons, 147 Ga. App. 636, 249 S.E.2d 687 (1978) ??? (see O.C.G.A. § 44-7-50).

- When the subject affidavit was sworn to and subscribed before a notary public, rather than before the judge of the superior court or any justice of the peace, and a summons was issued, there is an amendable defect in verification or lack thereof, waived by failure timely to object. Crump v. Jordan, 154 Ga. App. 503, 268 S.E.2d 787 (1980).

3. By Whom Made

Affidavit by agent.

- Affidavit may be made by an agent of the landlord. Johnson v. Thrower, 117 Ga. 1007, 44 S.E. 846 (1903).

- Affidavit may be made by the administrator of a deceased landlord. Moody v. Ronaldson, 38 Ga. 652 (1869). See also Clark v. Smith, 142 Ga. 200, 82 S.E. 563 (1914).

- Affidavit may not be made by the landlord's attorney in the landlord's name, but may be made in the name of the maker as agent or attorney. Clark v. Smith, 142 Ga. 200, 82 S.E. 563 (1914).

- When an affidavit to obtain a dispossessory warrant is made by an attorney at law or an attorney in fact for the owner, the affidavit shall contain a recital of the employment and be signed by the attorney in the attorney's individual name, and the word "Atty." following a person's name is merely descriptio personae and, consequently, not sufficient. Heath v. Costello, 76 Ga. App. 94, 44 S.E.2d 919 (1947).

- Dispossessory warrant was not fatally flawed as O.C.G.A. § 44-7-50(a) did not require the warrant to state which of the permissible affiants had signed it and the mortgagee's attorney had validly signed the warrant. Mackey v. Fed. Nat'l Mortg., 294 Ga. App. 495, 669 S.E.2d 397 (2008).

Defenses

Answer asserting tenant's title.

- Counteraffidavit to a dispossessory proceeding under this statute which sets up title in the alleged tenant is good. Griffeth v. Wilmore, 46 Ga. App. 96, 166 S.E. 673 (1932) (see O.C.G.A. § 44-7-50).

- In dispossessory warrant proceeding, brought by tenant against subtenant for nonpayment of rent, subtenant could not set up a superior title in the owner of the premises, who had leased the premises to the subtenant's lessor, since the owner had not elected to treat the subtenant as the owner's tenant, or to release the original tenant, the subtenant's lessor. Veazey v. Sinclair Ref. Co., 66 Ga. App. 730, 19 S.E.2d 53 (1942).

Defects in landlord's title cannot be raised as defense to proceeding for possession. McKinney v. South Boston Sav. Bank, 156 Ga. App. 114, 274 S.E.2d 34 (1980).

Claimed defects in the landlord's title to premises cannot be raised as a defense to a proceeding for possession. The defendants' claim that the defendants owned the premises was relevant only to the extent that it challenged the allegations that the plaintiff owned the premises and that the defendants were tenants at sufferance, i.e., that the plaintiff was a landlord with right of immediate possession. Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 409 S.E.2d 71 (1991), cert. denied, 200 Ga. App. 897, 409 S.E.2d 71 (1991); Hague v. Kennedy, 205 Ga. App. 586, 423 S.E.2d 283, cert. denied, 205 Ga. App. 900, 423 S.E.2d 283 (1992).

Although the defense of lack of a landlord-tenant relationship is a proper defense to a dispossessory action, claimed defects in the landlord's title to the premises cannot be raised as a defense to a proceeding for possession. Bridges v. City of Moultrie, 210 Ga. App. 697, 437 S.E.2d 368 (1993).

A tenant's allegation of a defect in the landlord's title to the leased premises could not be raised as a defense to a proceeding for possession under O.C.G.A. § 44-7-50 et seq., although the tenant could raise the claimed defect in a separate proceeding. Sanders v. Daniel, 302 Ga. App. 350, 691 S.E.2d 244 (2010).

- Defense that sale of premises under power of sale in loan deed in favor of plaintiff was void on account of its improper exercise or because loan was not mature, could not be set up as a defense to a dispossessory proceeding. Ryals v. Atlantic Life Ins. Co., 53 Ga. App. 469, 186 S.E. 197 (1936).

Because two borrowers' allegation of wrongful foreclosure of their home was not a valid defense to a dispossessory action brought by the purchaser of their home at a nonjudicial foreclosure sale, pursuant to O.C.G.A. §§ 44-7-50 and44-7-53, the trial court's order issuing a writ of dispossession was affirmed. Vines v. LaSalle Bank Nat'l Ass'n, 302 Ga. App. 353, 691 S.E.2d 242 (2010).

- In proceeding by dispossessory warrant brought by a purchaser of land from the original landlord, a contention by the tenants that plaintiff's vendor had violated an oral option given the tenants to purchase the land before selling the land to any other purchaser did not present a valid defense, and evidence tending to show such a contract should have been excluded on the timely motion of the plaintiff. Minor v. Sutton, 73 Ga. App. 253, 36 S.E.2d 158 (1945).

In a dispossessory action by purchasers at a foreclosure sale, answer by former owners that the purchase was void because the foreclosure was not authorized was not germane to the proceeding because the purchasers were owners of the property unless and until the foreclosure was set aside. Womack v. Columbus Rentals, Inc., 223 Ga. App. 501, 478 S.E.2d 611 (1996).

Purchaser at foreclosure sale can lawfully institute dispossessory proceedings against the defaulting mortgagor, who may not assert that the advertisement of the property was invalid, because such an assertion is an attack on the purchaser's title to the premises. Partin v. Southern Disct. Co., 167 Ga. App. 798, 307 S.E.2d 697 (1983).

- Tenant could not assert errors related to a foreclosure sale because challenges to a foreclosure sale could not be asserted as a defense in a subsequent dispossessory proceeding. Lingo v. Smith, 316 Ga. App. 164, 729 S.E.2d 18 (2012).

Tort Liability of Landlord

Liability for non-compliance with this section.

- Landlord who forcibly ejects a tenant without complying with the provisions of this statute is liable to the tenant in trespass, though the latter be at the time holding over beyond the tenant's term, in arrears for rent, and in receipt of due notice to quit. Clifford v. Gressiner, 96 Ga. 789, 22 S.E. 399 (1895); Entelman v. Hagood, 95 Ga. 390, 22 S.E. 545 (1895); Ray v. Boyd, 96 Ga. 808, 22 S.E. 916 (1895); Broxton v. Ennis, 96 Ga. 792, 22 S.E. 945 (1895); Rape v. Gunn, 96 Ga. 791, 22 S.E. 962 (1895); Blitch & Newton v. Edwards, 96 Ga. 606, 24 S.E. 147 (1895); Lanier v. Kelly, 6 Ga. App. 738, 65 S.E. 692 (1909); Collins v. Baker, 51 Ga. App. 669, 181 S.E. 425 (1935); Teston v. Teston, 135 Ga. App. 321, 217 S.E.2d 498 (1975) (see O.C.G.A. § 44-7-50).

- When a tenant has not breached the contract of rental, but is entitled to possession of the rented premises, and this is known to the landlord, the act of the landlord in maliciously causing a warrant to issue to dispossess the tenant constitutes a trespass by the landlord against the tenant's right of possession for which the tenant has a cause of action in tort against the landlord. Yopp v. Johnson, 51 Ga. App. 925, 181 S.E. 596 (1935).

- Summary judgment under O.C.G.A. § 9-11-56 for an owner, a manager, and a lessor of an apartment was properly entered in a tenant's action for trespass arising out of the tenant's eviction; the entry of the writ of possession was proper, on the writ's face, under O.C.G.A. § 44-7-50. Vickers v. Merry Land & Inv. Co., 263 Ga. App. 316, 587 S.E.2d 816 (2003).

- A buyer who purchased a homeowner's home at a foreclosure sale was not required to obtain a writ of possession prior to changing the locks on the upstairs unit of the home because the homeowner, who allegedly moved from the downstairs unit to the upstairs unit of the home after the sale, was not a tenant at sufferance but an intruder. Steed v. Fed. Nat'l Mortg. Corp., 301 Ga. App. 801, 689 S.E.2d 843 (2009).

- Use of the dispossessory warrant procedure provided by statute by a landlord to obtain possession of the landlord's premises is not such a perversion or unintended use of the process as amounts to a malicious abuse of legal process, but the proceeding may amount to a malicious use of legal process if the facts so warrant. McSwain v. Edge, 6 Ga. App. 9, 64 S.E. 116 (1909); Crawford v. Theo, 112 Ga. App. 83, 143 S.E.2d 750 (1965) (see O.C.G.A. § 44-7-50).

When the evidence showed that a landlord harassed the landlord's tenant and that the tenant was intimidated by the landlord, a jury could find that the tenant reasonably believed that the tenant had been evicted when the landlord ordered the tenant off the premises and later locked the doors against the tenant, that this action was an attempt to convert the tenant's personal property which remained inside, and that suing the tenant for unpaid rent which accrued after the tenant was locked out was malicious. Swift Loan & Fin. Co. v. Duncan, 195 Ga. App. 556, 394 S.E.2d 356 (1990).

- In dispossessing under an illegal warrant, the officers are nothing more than mere agents of the defendant and the defendant would be liable for any damage proximately flowing from the original wrong of prosecuting the dispossessory warrant. Tapley v. Youmans, 95 Ga. App. 161, 97 S.E.2d 365 (1957).

- While a landlord may accomplish the duties required by O.C.G.A. § 44-7-50 for dispossession of a tenant through an agent or attorney, the landlord cannot avoid liability for a wrongful eviction by delegating these duties to an independent contractor. Owens v. Barclays American/Mortgage Corp., 218 Ga. App. 160, 460 S.E.2d 835 (1995).

Procedural Matters

Filing in justice court.

- If the landlord chooses to file a dispossessory action in the justice court, the landlord does so with the risk that the tenant will answer, causing the justice court to lose jurisdiction. Rucker v. Fuller, 247 Ga. 423, 276 S.E.2d 600 (1981).

What constitutes an "answer" in a dispossessory action is to be liberally construed. Rucker v. Fuller, 247 Ga. 423, 276 S.E.2d 600 (1981).

Tenant's answer to a dispossessory complaint need not be verified. Henry v. Wild Pines Apts., 177 Ga. App. 576, 340 S.E.2d 233 (1986).

- Filing of the counteraffidavit by the tenant to the proceedings to dispossess, regardless of the ground therefor, converts the case into one of law, with all the rights the parties would have if the suit were on open account or contract. Shehane v. Eberhart, 30 Ga. App. 265, 117 S.E. 675 (1923), rev'd on other grounds, 158 Ga. 743, 124 S.E. 527, answer conformed to, 33 Ga. App. 23, 125 S.E. 506 (1924).

- When a tenant answers a dispossessory affidavit either orally or in writing within the time prescribed by law or within the time during which the tenant may open a default as of right, the justice of the peace loses jurisdiction over the dispossessory matter. The tenant having answered, the case must be transmitted to the clerk of the superior court along with any fees required by law for filing in superior court. Rucker v. Fuller, 247 Ga. 423, 276 S.E.2d 600 (1981).

- Transfer of the case from the justice court to the superior court is not initiated by the tenant; rather, the transfer takes place by operation of the law. The tenant has merely answered the complaint and formed issues which must be tried in another court. Rucker v. Fuller, 247 Ga. 423, 276 S.E.2d 600 (1981).

- Superior court's order vacating justice of peace's order in contested dispossessory action for lack of jurisdiction and removing case to superior court for a proceeding on merits was proper. Young v. Hinton, 163 Ga. App. 692, 295 S.E.2d 150 (1982).

- When a dispossessory case is transmitted to the superior court unaccompanied by required advance costs or a proper pauper's affidavit, the clerk shall not be required to docket such case. The payment of advance costs and fees required by law shall be the responsibility of the plaintiff in the dispossessory action. In the event that the case is not docketed because of failure to pay costs or present a pauper's affidavit, the case must be dismissed for want of prosecution. Rucker v. Fuller, 247 Ga. 423, 276 S.E.2d 600 (1981).

- Only proper parties to an issue arising under a warrant sued out to dispossess a tenant holding over are the alleged landlord and the tenant, and it is error to allow other persons, under whom the tenant claimed possession, to be made parties defendant to the proceeding. Fitzgerald Trust Co. v. Shepard, 60 Ga. App. 674, 4 S.E.2d 689 (1939).

- Allegations of fact as the basis for the issuance of a warrant to dispossess a tenant, contained in the landlord's affidavit upon which the warrant issued, which were not denied by the tenant in the tenant's counteraffidavit, are treated as admitted; since the landlord's affidavit contained an allegation that the landlord demanded possession of the premises, and the tenant's counteraffidavit denied only that the rent was due and did not deny that demand was made for possession of the premises, such demand would be treated as an admitted fact. Carson v. Adair, 76 Ga. App. 418, 46 S.E.2d 166 (1948); Battles v. Anchor Rome Mills, Inc., 80 Ga. App. 47, 55 S.E.2d 156 (1949).

- Absent special circumstances, such as, insolvency of the landlord, or inadequacy of any legal defense which could be interposed thereto, equity will not interfere with a dispossessory proceeding to enjoin the same, since whatever defenses the tenant may have to such proceeding may be interposed in the dispossessory proceeding as readily as in a court of equity. Imperial Hotel Co. v. Martin, 199 Ga. 801, 35 S.E.2d 502 (1945); Shippen v. Folsom, 200 Ga. 58, 35 S.E.2d 915 (1945); Dumas v. Burleigh, 209 Ga. 241, 71 S.E.2d 545 (1952); Lee v. Peck, 228 Ga. 448, 186 S.E.2d 94 (1971).

- When dispossessory warrant was based on the sole ground that the defendant had "rented" the premises and failed to "pay the rent as per agreement," and the defendant contended that under the evidence the defendant was in possession as a purchaser, and not as a tenant under the alleged agreement to pay rent, or as a tenant at will or sufferance, and the evidence wholly failed to show any meeting of the minds of the parties upon such an agreement, a verdict for the defendant on the only expressed ground for the issuance of the dispossessory warrant was demanded. Thrift v. Schurr, 52 Ga. App. 314, 183 S.E. 195 (1935).

Pending proceeding under § 9-10-30. - Proceeding instituted under former Civil Code 1895, § 4813 (see O.C.G.A. § 44-7-50) was until disposed of a pending proceeding within the meaning of former Civil Code 1895, § 4950 (see O.C.G.A. § 9-10-30). Townsend v. Brinson, 117 Ga. 375, 43 S.E. 748 (1903); Ellis v. Stewart, 123 Ga. 242, 51 S.E. 321 (1905); Bedgood v. Carlton, 145 Ga. 54, 88 S.E. 568 (1916).

- Trial court erred in granting a writ of possession to the owner because, inter alia, the trial court failed to follow the procedures required for a dispossessory action. The trial court did not adhere to the requirements of the dispossessory statute as the tenant was entitled to, but was not granted, a trial on the issues, which would have included taking the testimony of witnesses orally in open court and proper notice of a trial. Metro Atlanta Task Force for the Homeless, Inc. v. Premium Funding Solutions, LLC, 321 Ga. App. 100, 741 S.E.2d 225 (2013).

- Since there was insufficient evidence to require a finding that a demand upon a tenant to deliver possession to the landlord was made prior to the commencement of the dispossession action, a directed verdict in favor of the plaintiff was not proper. Terrell v. Griffith, 129 Ga. App. 675, 200 S.E.2d 485 (1973).

- Claim that the Federal National Mortgage Association violated O.C.G.A. § 44-7-50 survived because the evidence created a genuine dispute as to whether the plaintiff abandoned the property or the plaintiff's possessions or whether the plaintiff ceded possession of the property entirely. Mwangi v. Fannie Mae, 162 F. Supp. 3d 1315 (N.D. Ga. 2016).

- It is also error to fail to limit the jury's inquiry, leaving the jury to find what the jury may from the evidence. Jones v. Blackwelder, 146 Ga. 238, 91 S.E. 45 (1916).

In a case under this statute involving a tenancy at will or sufferance, it is error for the court to fail to explain fully these terms to the jury, notwithstanding a quotation of this statute is made. Salios v. Swift, 25 Ga. App. 96, 102 S.E. 869 (1920) (see O.C.G.A. § 44-7-50).

- One dispossessory proceeding alone is sufficient to determine whether the lessors are entitled to possession of the premises, since lessees and sublessees of the same premises may be made parties defendant in such a single proceeding. Lee v. Peck, 228 Ga. 448, 186 S.E.2d 94 (1971).

- When the statutory affidavit provided for in this statute seeking to evict one alleged to be tenant holding over beyond the tenant's term is resisted by the filing of a counteraffidavit denying tenancy and asserting ownership as a defense, the issue presented is not a case respecting title to land, so as to come within the jurisdiction of the Supreme Court, as defined by the Constitution. Arnold v. Water Power & Mining Co., 147 Ga. 91, 92 S.E. 889 (1917); Anderson v. Watkins, 170 Ga. 483, 153 S.E. 8 (1930) (see O.C.G.A. § 44-7-50).

- An action filed in the Civil Court of Fulton County in which the only relief sought is possession of real estate by the owner thereof is not subject to direct appeal to the Court of Appeals; an appeal to the appellate division of the civil court must first be filed. Courtney v. Ihlanfeldt, 130 Ga. App. 637, 204 S.E.2d 312 (1974).

Miscellaneous Considerations

Derivation of title.

- One who seeks to dispossess a person as tenant of premises, on the ground that the relation of landlord and tenant arose by virtue of title to the property acquired by the plaintiff at a sale of the property had under a power of sale in a deed to secure debt, made by the defendant or one under whom the defendant claims right of possession, must show title derived from the grantor in the security deed. Harold v. Modern Homes Constr. Co., 104 Ga. App. 415, 121 S.E.2d 809 (1961).

- When a tenancy at will had been created, the defendant was entitled to two month's notice as a tenant at will before the tenancy could be terminated so as to support an action under the provisions of this statute. Carruth v. Carruth, 77 Ga. App. 131, 48 S.E.2d 387 (1948) (see O.C.G.A. § 44-7-50).

- Landlord is not entitled to a dispossessory warrant for failure to pay rent on the day named since a strict adherence to the terms of the lease contract have been waived by the landlord by prior conduct of the parties, and no demand has been made for the rent on the day named, or at any other time, and the rent is tendered to the landlord before the commencement of a dispossessory warrant proceeding. Arnold v. Selman, 83 Ga. App. 145, 62 S.E.2d 915 (1951).

- When lessor received the rent check covering the payment for the month and held the check for five days before notifying the lessee that the lessor considered the lease terminated for nonpayment of rent and continued to so hold such check without ever presenting the check for payment at the bank, and since the record showed that all subsequent rent payments due between such time and the time of the trial were tendered in accordance with the lease agreement, the evidence demanded a verdict for the lessees. Yates v. Farmer, 102 Ga. App. 570, 117 S.E.2d 211 (1960).

- Lessee was not in default in the payment of rent after the lessee paid the rent into court under a garnishment summons. Deaton v. Johnson, 72 Ga. App. 573, 34 S.E.2d 560 (1945).

- When demand for possession of the premises was given, defendant mother had ceased to be a tenant in common with her children, fee simple owners, and occupied the relationship to them of landlord and tenant. Roberts v. Graham, 98 Ga. App. 309, 105 S.E.2d 801 (1958).

- Although two owners of an aircraft hangar had no formal agreement with the city entitling the owners to extend their stay on city property, and the city could therefore elect to remove the owners at any time as tenants at will, the owners were obligated to remove any trade fixtures from the landlord's property, specifically, the hangar, despite the hangar's size, and at the owners' own expense, upon notification by the city of the expiration of the lease term; moreover, the hangar was such that although the hangar was bolted to the ground, it was done so in such a way that the hangar could be disassembled and rebuilt elsewhere. S.S. Air, Inc. v. City of Vidalia, 278 Ga. App. 149, 628 S.E.2d 117 (2006).

When an arrestee refused to allow a guest back into the arrestee's home and removed the guest's things, officers were not entitled to qualified immunity as to the arrestee's civil rights claims because the officers did not show that the officers had probable cause to arrest the arrestee for criminal damage to property under O.C.G.A. § 16-7-23; the parties' arguments regarding the exclusive method that a landlord may use to evict a tenant under O.C.G.A. § 44-7-50 et seq. were irrelevant. Gray v. City of Roswell, F.3d (11th Cir. Aug. 13, 2012)(Unpublished).

Magistrate court has jurisdiction to try cases and issue writs and judgments in dispossessory and distress warrant proceedings when the amount in controversy exceeds $3,000.00. 1988 Op. Att'y Gen. No. U88-18.

- Landlord may institute dispossessory proceedings against a tenant by filing an affidavit with a judge of superior court or any justice of the peace demanding possession of the landlord's land and setting forth the facts which entitle the landlord thereto. This affidavit can be given before any justice of the peace regardless of the location of the property which is the subject of the affidavit. 1979 Op. Att'y Gen. No. U79-7.

Financial burden of physically removing a tenant's property may be properly cast upon the landlord. 1985 Op. Att'y Gen. No. U85-36.