2020 Georgia Code
Title 44 - Property
Chapter 7 - Landlord and Tenant
Article 3 - Dispossessory Proceedings
§ 44-7-51. Issuance of Summons; Service; Time for Answer; Defenses and Counterclaims

1. When the affidavit provided for in Code Section 44-7-50 is made, the judge of the superior court, the state court, or any other court with jurisdiction over the subject matter or the judge, clerk, or deputy clerk of the magistrate court shall grant and issue a summons to the sheriff or his deputy or to any lawful constable of the county where the land is located. A copy of the summons and a copy of the affidavit shall be personally served upon the defendant. If the sheriff is unable to serve the defendant personally, service may be had by delivering the summons and the affidavit to any person who is sui juris residing on the premises or, if after reasonable effort no such person is found residing on the premises, by posting a copy of the summons and the affidavit on the door of the premises and, on the same day of such posting, by enclosing, directing, stamping, and mailing by first-class mail a copy of the summons and the affidavit to the defendant at his last known address, if any, and making an entry of this action on the affidavit filed in the case.
2. The summons served on the defendant pursuant to subsection (a) of this Code section shall command and require the tenant to answer either orally or in writing within seven days from the date of the actual service unless the seventh day is a Saturday, a Sunday, or a legal holiday, in which case the answer may be made on the next day which is not a Saturday, a Sunday, or a legal holiday. If the answer is oral, the substance thereof shall be endorsed on the dispossessory affidavit. The answer may contain any legal or equitable defense or counterclaim. The landlord need not appear on the date of the tenant's response. The last possible date to answer shall be stated on the summons.
3. If service is by posting a copy of the summons and the affidavit on the door of the premises and mailing a copy of the summons and the affidavit to the defendant, as provided in subsection (a) of this Code section, the court shall have jurisdiction to enter a default judgment for possession of the premises in the absence of an answer being filed, but in such instance a default judgment for money owed may not be entered unless the defendant files an answer or otherwise makes an appearance in the case.

(Laws 1827, Cobb's 1851 Digest, p. 902; Code 1863, § 3984; Ga. L. 1865-66, p. 34, § 1; Ga. L. 1866, p. 25, § 1; Code 1868, § 4006; Code 1873, § 4078; Code 1882, § 4078; Civil Code 1895, § 4814; Civil Code 1910, § 5386; Code 1933, § 61-302; Ga. L. 1970, p. 968, § 1; Ga. L. 1971, p. 536, § 1; Ga. L. 1976, p. 1372, § 4; Ga. L. 1978, p. 938, § 1; Ga. L. 1982, p. 1228, § 2; Ga. L. 1983, p. 884, § 4-1; Ga. L. 1991, p. 94, § 44; Ga. L. 1991, p. 968, § 1; Ga. L. 2006, p. 656, § 1.2/HB 1273.)

- For survey of Georgia cases in the area of trial practice and procedure from June 1977 through May 1978, see 30 Mercer L. Rev. 239 (1978). For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986).

ANALYSIS

• General Consideration
• Service of Process
• Answer

General Consideration

Constitutionality.

- See Pelletier v. Northbrook Garden Apts., 233 Ga. 208, 210 S.E.2d 722 (1974).

- Purpose of subsection (b) of former Code 1933, §§ 61-302 and 61-303 (see O.C.G.A. §§ 44-7-51 and44-7-53) was to give tenants who were unrepresented by counsel and who were unschooled in the law an opportunity to state their defenses orally to the court as best they can and to have the substance of their defenses endorsed on the dispossessory warrant, thereby making a record upon which the case may proceed in the trial and appellate courts. Hill v. Hill, 241 Ga. 218, 244 S.E.2d 862 (1978); Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 258 S.E.2d 139 (1979); Denson v. Housing Auth., 150 Ga. App. 493, 258 S.E.2d 183 (1979).

- It is the purpose of this statute to afford the parties a speedy trial on the merits. Queen v. Harrell, 126 Ga. App. 122, 190 S.E.2d 160 (1972) (see O.C.G.A. § 44-7-51).

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

- 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 law. The tenant has merely answered the complaint and formed issues which, according to O.C.G.A. Art. 3, Ch. 7, T. 44, must be tried in another court. Rucker v. Fuller, 247 Ga. 423, 276 S.E.2d 600 (1981).

- 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).

- Because the commercial tenants did not assert a counterclaim in a landowner's dispossessory action, as the tenants were permitted to do under O.C.G.A. § 44-7-51(b), and the relief the tenants sought under O.C.G.A. § 44-7-53(b), to enjoin the landowner from pursuing the dispossessory action in the state court, was within the court's inherent jurisdiction to simply deny relief in the dispossessory action, there was no cause to grant the tenants' motion to transfer the matter to a superior court. Davita, Inc. v. Othman, 270 Ga. App. 93, 606 S.E.2d 112 (2004).

- Use of a dispossessory warrant not to obtain possession of the premises for a failure to pay the rent allowed by law, but to compel the tenant to give up in money $6.00 per month in excess of the maximum amount which was allowed by law under an administrative order for freezing rents in the area in question, and to prevent the tenant from making a just demand for reimbursement for repairs, is an abuse of legal process. Defnall v. Schoen, 73 Ga. App. 25, 35 S.E.2d 564 (1945).

- Demand for possession is not necessary when it would be futile to make the demand and the demand would be refused. RCH Corp. v. Southland Inv. Corp., 122 Ga. App. 815, 178 S.E.2d 766 (1970).

- Trial court properly awarded a mortgage company a writ of possession in an action against a debtor; the debtor was not deprived of the debtor's right to file a defense pursuant to O.C.G.A. § 44-7-51(b) as a bankruptcy court lifted a bankruptcy stay to allow this action to proceed. Agber v. DLJ Mortg. Capital, Inc., 263 Ga. App. 53, 587 S.E.2d 210 (2003).

- When the record showed that the defendants accepted service of a dispossessory action and did not answer within the requisite time, the defendants waived the right to challenge their liability or assert other defenses. 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 correctly disallowed evidence of emblements or emoluments in a dispossessory action after the defendant failed to assert any such claim in the defendant's answer or as a counterclaim, to proffer evidence of details of the alleged specific improvements that might be the basis for such a claim, or to proffer evidence as to an agreement between the parties for reimbursement of the cost of any improvements. Gentry v. Chateau Properties, 236 Ga. App. 371, 511 S.E.2d 892 (1999).

- Even though Georgia courts have held that dispossessory actions were not civil actions, a dispossessory action filed by the Federal Home Loan Mortgage Corporation was properly removed to federal court under a Weems analysis since: (1) dispossessory actions were tried before a magistrate court, which was a regular judicial tribunal; (2) dispossessory actions required notice and service under O.C.G.A. § 44-7-51; (3) a dispossessory action was comparable to a civil trial if the tenant answered; and (4) rent was an issue of pecuniary value in a dispossessory action. Fed. Home Loan Mortg. Corp. v. Matassino, 911 F. Supp. 2d 1276 (N.D. Ga. 2012).

- If the defendant answers in a proceeding brought under former Code 1933, § 61-301 et seq. (see O.C.G.A. § 44-7-51), notice was not an issue, and the trial court had jurisdiction over the defendant's person as to both the dispossessory proceeding and to enter a money judgment against the defendant. 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).

When the defendant is served by "nail and mail" in a dispossessory proceeding and does not answer, the trial court has jurisdiction over defendant's person for the purposes of the dispossessory proceeding but may not enter a judgment for rent due upon default. 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).

In a dispossessory proceeding, a judgment for rent allegedly due cannot be rendered upon default if service was by nail and mail. Housing Auth. v. Hudson, 250 Ga. 109, 296 S.E.2d 558 (1982).

- 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).

Cited in Crawford v. Crawford, 139 Ga. 394, 77 S.E. 557 (1913); Hall v. John Hancock Mut. Life Ins. Co., 50 Ga. App. 625, 179 S.E. 183 (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); Ward v. Walker, 222 Ga. 451, 151 S.E.2d 228 (1966); RCH Corp. v. Southland Inv. Corp., 122 Ga. App. 815, 178 S.E.2d 766 (1970); Stephens v. Cogdell, 227 Ga. 121, 179 S.E.2d 45 (1971); Sanks v. Georgia, 401 U.S. 144, 91 S. Ct. 593, 27 L. Ed. 2d 741 (1971); Terrell v. Griffith, 129 Ga. App. 675, 200 S.E.2d 485 (1973); Daniel v. Federal Nat'l Mtg. Ass'n, 231 Ga. 385, 202 S.E.2d 388 (1973); Browning v. F.E. Fortenberry & Sons, 131 Ga. App. 498, 206 S.E.2d 101 (1974); Lopez v. Dlearo, 232 Ga. 339, 206 S.E.2d 454 (1974); Vlahos v. DeLong, 132 Ga. App. 722, 209 S.E.2d 12 (1974); Warrick v. Mid-State Homes, Inc., 139 Ga. App. 301, 228 S.E.2d 234 (1976); Jordan v. Ford Motor Credit Co., 141 Ga. App. 280, 233 S.E.2d 256 (1977); Perimeter Billjohn, Inc. v. Perimeter Mall, Inc., 141 Ga. App. 343, 233 S.E.2d 470 (1977); Hill v. Hill, 143 Ga. App. 549, 239 S.E.2d 154 (1977); Lipshutz v. Shantha, 144 Ga. App. 196, 240 S.E.2d 738 (1977); King v. Ellis, 146 Ga. App. 157, 246 S.E.2d 1 (1978); Davis v. State, 147 Ga. App. 107, 248 S.E.2d 181 (1978); Adams v. Wright, 242 Ga. 330, 249 S.E.2d 15 (1978); Howington v. W.H. Ferguson & Sons, 147 Ga. App. 636, 249 S.E.2d 687 (1978); 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); Crump v. Jordan, 154 Ga. App. 503, 268 S.E.2d 787 (1980); C & A Land Co. v. Rudolf Inv. Corp., 163 Ga. App. 832, 296 S.E.2d 149 (1982); Jones v. Cooke, 169 Ga. App. 516, 313 S.E.2d 773 (1984); A.G. Spanos Dev., Inc. v. Caras, 170 Ga. App. 243, 316 S.E.2d 793 (1984); Moran v. Mid-State Homes, Inc., 171 Ga. App. 618, 320 S.E.2d 625 (1984); Solomon v. Norwest Mortg. Corp., 245 Ga. App. 875, 538 S.E.2d 783 (2000).

Service of Process

Applicability of Civil Practice Act.

- Since former Code 1933, § 61-302 (see O.C.G.A. § 44-7-51) did not expressly prescribe that the cumulative service provisions of Ga. L. 1972, p. 689, §§ 1-3 (see O.C.G.A. § 9-11-4 (i)) were unavailable, Ga. L. 1968, p. 1104, § 12 (see O.C.G.A. § 9-11-81), providing for exceptions to the applicability of the Civil Practice Act, was inoperable. Navaho Corp. v. Stuckey, 141 Ga. App. 271, 233 S.E.2d 217 (1977).

- Statute does not allow any service which is not reasonably calculated, under the circumstances, to afford notice. Davis v. Hybrid Indus., Inc., 142 Ga. App. 722, 236 S.E.2d 854 (1977) (see O.C.G.A. § 44-7-51).

- Service by tacking affidavit and summons in a dispossessory action was not service reasonably calculated, under the circumstances, to afford notice since the tenants did not reside at the premises. Davis v. Hybrid Indus., Inc., 142 Ga. App. 722, 236 S.E.2d 854 (1977).

- Court cannot construe this statute to allow tacking when personal service is possible. Davis v. Hybrid Indus., Inc., 142 Ga. App. 722, 236 S.E.2d 854 (1977) (see O.C.G.A. § 44-7-51).

- To nail the process to the very door of the disputed premises where the tenant claims to be living is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford the parties an opportunity to present their objections. Pelletier v. Northbrook Garden Apts., 233 Ga. 208, 210 S.E.2d 722 (1974).

- When return of service only reasonably informed defendant that after the lapse of seven days the marshal would execute the warrant by evicting the defendant; since there was no command to appear at a hearing on a day certain, and since the defendant was given no notice of a hearing on the issue of past due rent which was required by the statute, the defendant's right to notice and a hearing have been violated. Van Schallern v. Stanco, 132 Ga. App. 794, 209 S.E.2d 243 (1974).

- When a hold-over tenant failed to answer a summons issued under former Code 1933, § 61-302 (see O.C.G.A. § 44-7-51) and a default judgment was rendered against the tenant, the marshal's return of service reciting that "default may be opened not later than8-17-78" which was given to the tenant was sufficient under former Code 1933, § 61-303 (see O.C.G.A. § 44-7-53). Bannister v. Airport Assocs., 149 Ga. App. 501, 254 S.E.2d 742 (1979).

"Nail and mail" method of service in dispossessory proceeding conferred upon trial court jurisdiction over person of defendant as to both the dispossessory proceeding and to enter a money judgment against the defendant for past-due rent after defendant filed a timely answer. 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).

Posting a copy of the summons and dispossessory warrant on the door of the tenant's residence, the leased apartment, and mailing a copy of the documents to the same address was adequate service. Sandifer v. Long Investors, Inc., 211 Ga. App. 757, 440 S.E.2d 479 (1994).

Because a dispossessory court never ruled upon or resolved a landlord's claims for past due rent and other damages, and because the dispossessory court lacked jurisdiction over the defaulting tenants, who were served by "nail and mail" service under O.C.G.A. § 44-7-51(a), the landlord's claims were not barred by the doctrine of res judicata under O.C.G.A. § 9-12-40 or subject to a plea of abatement under O.C.G.A. §§ 9-2-5(a) and9-2-44(a). Bhindi Bros. v. Patel, 275 Ga. App. 143, 619 S.E.2d 814 (2005).

- When the requirement of mailing a copy of the summons and affidavit to the defendant's last known address is not satisfied because the plaintiff had instead mailed defendant the service copy of an action against another tenant, the fact that the defendant may have had actual knowledge of the pendency of the proceeding is irrelevant. Spring Branch Apts. v. Epps, 160 Ga. App. 142, 286 S.E.2d 490 (1981).

- Amendment to a summons in a dispossessory action which changed the time for the defendant's answer was required to be served with the same formalities required for the original summons. Tampa Pipeline Corp. v. City Mills Co., 216 Ga. App. 783, 456 S.E.2d 270 (1995).

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

- Tenant's attempt to contest a dispossessory proceeding is not to be ignored or dismissed because of a failure to meet the formalities required for other judicial proceedings but not expressly required for a dispossessory proceeding. Lamb v. Housing Auth., 146 Ga. App. 786, 247 S.E.2d 597 (1978).

- Written but unsigned answer is sufficient to create a contested dispossessory proceeding and thus to open a default to a dispossessory summary. Lamb v. Housing Auth., 146 Ga. App. 786, 247 S.E.2d 597 (1978).

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).

- Personal appearance before the court was not an "answer" within the meaning of former Code 1933, § 61-302 (see O.C.G.A. § 44-7-51), nor did the appearance waive the right to open the default in accordance with former Code 1933, § 61-303 (see O.C.G.A. § 44-7-53). Denson v. Housing Auth., 150 Ga. App. 493, 258 S.E.2d 183 (1979).

- Former Code 1933, § 61-303 (see O.C.G.A. § 44-7-53), in conjunction with subsection (b) of former Code 1933, § 61-302 (see O.C.G.A. § 44-7-51), provided that if the tenant failed to answer within seven days from the date of service, the tenant may open the default as a matter of right by making an answer within seven days after the date of the default. Burnett v. Pace, 151 Ga. App. 111, 258 S.E.2d 916 (1979).

- When appellee-tenant failed to answer dispossessory action within the statutorily prescribed time, the trial court was without authority to grant appellee's motion to open default, and appellants were entitled to an immediate writ of possession and to other items sought in the complaint. Avery v. Warrick, 172 Ga. App. 674, 324 S.E.2d 532 (1984).

Tenant failed to show the type of defect in the dispossession action filed against the tenant that would afford the tenant a basis for a collateral attack as the tenant failed to answer the dispossession writ within seven days as required by O.C.G.A. § 44-7-51(b) since the sheriff delivering the summons knocked before resorting to the tack and mail approach, and a demand for payment was properly made. Vickers v. Merry Land & Inv. Co., 263 Ga. App. 316, 587 S.E.2d 816 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Sufficiency of oral answer.

- An oral answer by the tenant is sufficient to prevent issuance of a writ of possession. 1983 Op. Att'y Gen. No. U83-69.