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Assembly. However, the Statutes posted from the 2004 Regular Session may not yet
be in effect. Users of this information should note that the effective date of
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44-7-1.
(a) The relationship of landlord and tenant is created when the owner of real
estate grants to another person, who accepts such grant, the right simply to
possess and enjoy the use of such real estate either for a fixed time or at the
will of the grantor. In such a case, no estate passes out of the landlord and
the tenant has only a usufruct which may not be conveyed except by the
landlord's consent and which is not subject to levy and sale.
(b) All renting or leasing of real estate for a period of time less than five
years shall be held to convey only the right to possess and enjoy such real
estate, to pass no estate out of the landlord, and to give only the usufruct
unless the contrary is agreed upon by the parties to the contract and is so
stated in the contract.
44-7-2.
(a) Contracts creating the relationship of landlord and tenant for any time not
exceeding one year may be by parol.
(b) In any contract, lease, license agreement, or similar agreement, oral or
written, for the use or rental of real property as a dwelling place, a landlord
or a tenant may not waive, assign, transfer, or otherwise avoid any of the
rights, duties, or remedies contained in the following provisions of law:
(1) Code Section 44-7-13, relating to the duties of a landlord as to repairs and
improvements;
(2) Code Section 44-7-14, relating to the liability of a landlord for failure to
repair;
(3) Ordinances adopted pursuant to Code Section 36-61-11;
(4) Article 3 of this chapter, relating to proceedings against tenants holding
over;
(5) Article 4 of this chapter, relating to distress warrants;
(6) Article 2 of this chapter, relating to security deposits; and
(7) Any applicable provision of Chapter 11 of Title 9 which has not been
superseded by this chapter.
(c) A provision for the payment by the tenant of the attorney's fees of the
landlord upon the breach of a rental agreement by the tenant, which provision is
contained in a contract, lease, license agreement, or similar agreement, oral or
written, for the use or rental of real property as a dwelling place shall be
void unless the provision also provides for the payment by the landlord of the
attorney´s fees of the tenant upon the breach of the rental agreement by the
landlord.
44-7-3.
(a) At or before the commencement of a tenancy, the landlord or an agent or
other person authorized to enter into a rental agreement on behalf of the
landlord shall disclose to the tenant in writing the names and addresses of the
following persons:
(1) The owner of record of the premises or a person authorized to act for and on
behalf of the owner for the purposes of serving of process and receiving and
receipting for demands and notice; and
(2) The person authorized to manage the premises.
In the event of a change in any of the names and addresses required to be
contained in such statement, the landlord shall advise each tenant of the change
within 30 days after the change either in writing or by posting a notice of the
change in a conspicuous place.
(b) A person who enters into a rental agreement on behalf of an owner or a
landlord or both and who fails to comply with the disclosure requirements in
paragraphs (1) and (2) of subsection (a) of this Code section becomes an agent
of the owner or the landlord or both for serving of process and receiving and
receipting for notices and demands; for performing the obligations of the
landlord under this chapter; and for expending or making available, for the
purpose of fulfilling such obligations, all rent collected from the premises.
44-7-4.
(a) Municipalities and counties may establish by local ordinance minimum
security standards not in conflict with applicable fire codes to prevent the
unauthorized entry of premises occupied by a tenant as a dwelling place and may
require landlords to comply with such standards.
(b) This Code section shall be cumulative to and shall not prohibit the
enactment of other general and local laws, rules and regulations of state or
local agencies, and local ordinances on this subject.
44-7-5.
When, in an action for rent, title is shown in the plaintiff and occupation by
the defendant is proved, an obligation to pay rent is generally implied.
However, if the entry of the defendant on the premises was not under the
plaintiff or if the possession of the defendant is adverse to the plaintiff, no
such implication arises.
44-7-6.
Where no time is specified for the termination of a tenancy, the law construes
it to be a tenancy at will.
44-7-7.
Sixty days´ notice from the landlord or 30 days´ notice from the tenant is
necessary to terminate a tenancy at will.
44-7-8.
The tenant at will is entitled to his emblements if the crop is sowed or planted
before the landlord gives him notice of termination of the tenancy, if the
tenancy is terminated by the judicial sale of the estate by the landlord or by
death of the landlord or tenant, or if for any other cause the tenancy is
suddenly terminated.
44-7-9.
The tenant may not dispute his landlord´s title or attorn to another claimant
while he is in actual physical occupation, while he is performing any active or
passive act or taking any position whereby he expressly or impliedly recognizes
his landlord´s title, or while he is taking any position that is inconsistent
with the position that the landlord´s title is defective.
44-7-10.
The tenant shall deliver possession to the landlord at the expiration of his
term; and, if he fails or refuses to do so, a summary remedy pursuant to Article
3 of this chapter is given to the landlord.
444-7-11.
The tenant has no rights beyond the use of the land and tenements rented to him
and such privileges as are necessary for the enjoyment of his use. He may not
cut or destroy growing trees, remove permanent fixtures, or otherwise injure the
property. He may use dead or fallen timber for firewood and the pasturage for
his cattle.
44-7-12.
During the term of his tenancy or any continuation thereof or while he is in
possession under the landlord, a tenant may remove trade fixtures erected by
him. After the term and his possession are ended, any trade fixtures remaining
will be regarded as abandoned for the use of the landlord and will become the
landlord´s property.
44-7-13.
The landlord must keep the premises in repair. He shall be liable for all
substantial improvements placed upon the premises by his consent.
44-7-14.
Having fully parted with possession and the right of possession, the landlord is
not responsible to third persons for damages resulting from the negligence or
illegal use of the premises by the tenant; provided, however, the landlord is
responsible for damages arising from defective construction or for damages
arising from the failure to keep the premises in repair.
44-7-14.1.
(a) As used in this Code section, the term 'utilities' means heat, light, and
water service.
(b) It shall be unlawful for any landlord knowingly and willfully to suspend the
furnishing of utilities to a tenant until after the final disposition of any
dispossessory proceeding by the landlord against such tenant.
(c) Any person who violates subsection (b) of this Code section shall, upon
conviction, be assessed a fine not to exceed $500.00.
44-7-15.
The destruction of a tenement by fire or the loss of possession by any casualty
not caused by the landlord or from a defect of his title shall not abate the
rent contracted to be paid.
44-7-16.
All contracts for rent shall bear interest from the time the rent is due.
44-7-17.
When it is agreed that the tenant shall pay to the landlord as rent a part of
the crop produced on the lands rented from the landlord and the tenant, in good
faith, delivers the part of the crop agreed on in discharge of his rent, such
part of the crop so delivered shall be discharged from the lien of any judgment,
decree, or other process whatsoever against the tenant.
44-7-18.
(a) As used in this Code section, the term:
(1) 'Assignation' means the making of any appointment or engagement for
prostitution or any act in furtherance of such appointment or engagement.
(2) 'Prostitution' means the offering or giving of the body for sexual
intercourse, sex perversion, obscenity, or lewdness for hire.
(3) 'Tourist camp' means any temporary or permanent buildings, tents, cabins or
structures, or trailers or other vehicles which are maintained, offered, or used
for dwelling or sleeping quarters for pay.
(b) All leases and agreements letting, subletting, or renting any house, place,
building, tourist camp, or other structure for the purpose of prostitution or
assignation shall be void.
44-7-19.
No county or municipal corporation may enact, maintain, or enforce any ordinance
or resolution which would regulate in any way the amount of rent to be charged
for privately owned, single-family or multiple-unit residential rental property.
This Code section shall not be construed as prohibiting any county or municipal
corporation, or any authority created by a county or municipal corporation for
that purpose, from regulating in any way property belonging to such county, such
municipal corporation, or such authority from entering into any agreements with
private persons, which agreements regulate the amount of rent to be charged for
such rental properties.
44-7-20.
When the owner of real property, either directly or through an agent, seeks to
lease or rent that property for residential occupancy, prior to entering a
written agreement for the leasehold of that property, the owner shall, either
directly or through an agent, notify the prospective tenant in writing of the
property´s propensity of flooding if flooding has damaged any portion of the
living space covered by the lease or attachments thereto to which the tenant or
the tenant´s resident relative has sole and exclusive use under the written
agreement at least three times during the five-year period immediately preceding
the date of the lease. An owner failing to give such notice shall be liable in
tort to the tenant and the tenant´s family residing on the leased premises for
damages to the personal property of the lessee or a resident relative of the
lessee which is proximately caused by flooding which occurs during the term of
the lease. For purposes of this Code section, flooding is defined as the
inundation of a portion of the living space covered by the lease which was
caused by an increased water level in an established water source such as a
river, stream, or drainage ditch or as a ponding of water at or near the point
where heavy or excessive rain fell. This Code section shall apply only to
leaseholds entered into on or after July 1, 1995.
44-7-21.
(a) Where a landlord or tenant has entered into a written brokerage commission
agreement for the payment of compensation or promise of payment to a real estate
broker in consideration of brokerage services rendered in connection with the
consummation of a lease, then, notwithstanding any rule or construction of law
under which such written brokerage commission agreement might otherwise be
considered the personal obligation of the original landlord or tenant
specifically named in the lease, such written brokerage commission agreement
shall, pursuant to the terms of this Code section, constitute a binding
contractual obligation of such landlord or tenant, as the case may be, and of
their respective grantees, successors, and assigns. Upon any sale, transfer,
assignment, or other disposition, including, without limitation, by reason of
the enforcement of any mortgage, lien, deed to secure debt, or other security
instrument, of a landlord´s interest in real property or upon any sale,
assignment, transfer, or other disposition of a tenant´s leasehold interest, the
succeeding party shall be bound for all obligations occurring after the sale,
transfer, assignment, or other disposition with the same effect as if such
succeeding party had expressly assumed the landlord´s or tenant´s obligations
relating to the written brokerage commission agreement if:
(1) A written brokerage commission agreement is incorporated into the lease;
(2) The real estate broker has complied with subsection (b) of this Code
section;
(3) The succeeding party assumes the benefits of the tenancy, rental amount, and
term of the lease; and
(4) The written brokerage commission agreement has not been waived in writing by
the broker.
The conveyance or transfer of the real property coupled with the continuing
assumption of the tenancy, rental amount, and term of said lease shall
constitute conclusive evidence of the succeeding landlord´s or tenant´s
agreement to pay such periodic commission payments under the written brokerage
commission agreement.
(b) A real estate broker shall be entitled to the protections afforded by this
Code section only upon the broker´s recording a notice of commission rights in
the deed records in the office of the clerk of the superior court in the county
in which the real property or leasehold interest is located within 30 days of
the execution of the lease incorporating the written brokerage commission
agreement. Said notice of commission rights must be filed before conveyance of
the real property, must be signed by the broker or by a person expressly
authorized to sign on behalf of the broker, and must follow substantially the
following form:
'NOTICE OF COMMISSION RIGHTS
The undersigned licensed Georgia real estate broker does hereby publish this
NOTICE OF COMMISSION RIGHTS pursuant to Code Section 44-7-21 of the Official
Code of Georgia Annotated to establish that the lease set forth below contains a
written brokerage commission agreement providing for the payment or promise of
payment of compensation for brokerage services.
______________________________________________________________________
Owner
______________________________________________________________________
Landlord
______________________________________________________________________
Tenant
______________________________________________________________________
Lease date Lease term
______________________________________________________________________
Project name or building
Legal Description: All that tract or parcel of land lying and being in the State
of Georgia, County of __________, being more particularly described on Exhibit
"A" attached hereto and made a part hereof. (A full and complete legal
description is required for this form to be valid.)
Given under hand and seal this _____ day of ______________, ____.
Signed, sealed, and
delivered in the
presence of: Broker:
_______________________ ______________________(Seal)
Unofficial Witness Name: ____________________
________________________ ___________________________
Notary Public Georgia Real Estate
(Notary Seal Attached) License No. '
(c) The real estate broker must file a release of commission rights within 30
days of receipt of the final payment of commissions due under the written
brokerage commission agreement.
(d) This Code section shall only apply to leaseholds of all or a portion of
commercial real estate as that term is defined in Code Section 44-14-601 which
are entered into on or after July 1, 1997.
(e) Notwithstanding any provision of this Code section to the contrary, this
Code section does not create an interest in the real property which is the
subject of the lease.
44-7-30.
As used in this article, the term:
(1) 'Residential rental agreement' means a contract, lease, or license agreement
for the rental or use of real property as a dwelling place.
(2) 'Security deposit' means money or any other form of security given after
July 1, 1976, by a tenant to a landlord which shall be held by the landlord on
behalf of a tenant by virtue of a residential rental agreement and shall
include, but not be limited to, damage deposits, advance rent deposits, and pet
deposits. The term 'security deposit' does not include earnest money or pet fees
which are not to be returned to the tenant under the terms of the residential
rental agreement.
44-7-31.
Except as provided in Code Section 44-7-32, whenever a security deposit is held
by a landlord or his agent on behalf of a tenant, such security deposit shall be
deposited in an escrow account established only for that purpose in any bank or
lending institution subject to regulation by this state or any agency of the
United States government. The security deposit shall be held in trust for the
tenant by the landlord or his agent except as provided in Code Section 44-7-34.
Tenants shall be informed in writing of the location and account number of the
escrow account required by this Code section.
44-7-32.
(a) As an alternative to the requirement that security deposits be placed in
escrow as provided in Code Section 44-7-31, the landlord may post and maintain
an effective surety bond with the clerk of the superior court in the county in
which the dwelling unit is located. The amount of the bond shall be the total
amount of the security deposits which the landlord holds on behalf of the
tenants or $50,000.00, whichever is less. The bond shall be executed by the
landlord as principal and a surety company authorized and licensed to do
business in this state as surety. The bond shall be conditioned upon the
faithful compliance of the landlord with Code Section 44-7-34 and the return of
the security deposits in the event of the bankruptcy of the landlord or
foreclosure of the premises and shall run to the benefit of any tenant injured
by the landlord´s violation of Code Section 44-7-34.
(b) The surety may withdraw from the bond by giving 30 days´ written notice by
registered or certified mail or statutory overnight delivery to the clerk of the
superior court in the county in which the principal´s dwelling unit is located,
provided that such withdrawal shall not release the surety from any liability
existing under the bond at the time of the effective date of the withdrawal.
(c) The clerk of the superior court shall receive a fee of $5.00 for filing and
recording the surety bond and shall also receive a fee of $5.00 for canceling
the surety bond. The clerk of the superior court shall not be held personally
liable should the surety bond prove to be invalid.
44-7-33.
(a) Prior to tendering a security deposit, the tenant shall be presented with a
comprehensive list of any existing damage to the premises, which list shall be
for the tenant´s permanent retention. The tenant shall have the right to inspect
the premises to ascertain the accuracy of the list prior to taking occupancy.
The landlord and the tenant shall sign the list and this shall be conclusive
evidence of the accuracy of the list but shall not be conclusive as to latent
defects. If the tenant refuses to sign the list, the tenant shall state
specifically in writing the items on the list to which he dissents and shall
sign such statement of dissent.
(b) Within three business days after the date of the termination of occupancy,
the landlord or his agent shall inspect the premises and compile a comprehensive
list of any damage done to the premises which is the basis for any charge
against the security deposit and the estimated dollar value of such damage. The
tenant shall have the right to inspect the premises within five business days
after the termination of the occupancy in order to ascertain the accuracy of the
list. The landlord and the tenant shall sign the list, and this shall be
conclusive evidence of the accuracy of the list. If the tenant refuses to sign
the list, he shall state specifically in writing the items on the list to which
he dissents and shall sign such statement of dissent. If the tenant terminates
occupancy without notifying the landlord, the landlord may make a final
inspection within a reasonable time after discovering the termination of
occupancy.
(c) A tenant who disputes the accuracy of the final damage list given pursuant
to subsection (b) of this Code section may bring an action in any court of
competent jurisdiction in this state to recover the portion of the security
deposit which the tenant believes to be wrongfully withheld for damages to the
premises. The tenant´s claims shall be limited to those items to which the
tenant specifically dissented in accordance with this Code section. If the
tenant fails to sign a list or to dissent specifically in accordance with this
Code section, the tenant shall not be entitled to recover the security deposit
or any other damages under Code Section 44-7-35, provided that the lists
required under this Code section contain written notice of the tenant´s duty to
sign or to dissent to the list.
44-7-34.
(a) Except as otherwise provided in this article, within one month after the
termination of the residential lease or the surrender and acceptance of the
premises, whichever occurs last, a landlord shall return to the tenant the full
security deposit which was deposited with the landlord by the tenant. No
security deposit shall be retained to cover ordinary wear and tear which
occurred as a result of the use of the premises for the purposes for which the
premises were intended, provided that there was no negligence, carelessness,
accident, or abuse of the premises by the tenant or members of his household or
their invitees or guests. In the event that actual cause exists for retaining
any portion of the security deposit, the landlord shall provide the tenant with
a written statement listing the exact reasons for the retention thereof. If the
reason for retention is based on damages to the premises, such damages shall be
listed as provided in Code Section 44-7-33. When the statement is delivered, it
shall be accompanied by a payment of the difference between any sum deposited
and the amount retained. The landlord shall be deemed to have complied with this
Code section by mailing the statement and any payment required to the last known
address of the tenant via first class mail. If the letter containing the payment
is returned to the landlord undelivered and if the landlord is unable to locate
the tenant after reasonable effort, the payment shall become the property of the
landlord 90 days after the date the payment was mailed. Nothing in this Code
section shall preclude the landlord from retaining the security deposit for
nonpayment of rent or of fees for late payment, for abandonment of the premises,
for nonpayment of utility charges, for repair work or cleaning contracted for by
the tenant with third parties, for unpaid pet fees, or for actual damages caused
by the tenant´s breach, provided the landlord attempts to mitigate the actual
damages.
(b) In any court action in which there is a determination that neither the
landlord nor the tenant is entitled to all or a portion of a security deposit
under this article, the judge or the jury, as the case may be, shall determine
what would be an equitable disposition of the security deposit; and the judge
shall order the security deposit paid in accordance with such disposition.
44-7-35.
(a) A landlord shall not be entitled to retain any portion of a security deposit
if the security deposit was not deposited in an escrow account in accordance
with Code Section 44-7-31 or a surety bond was not posted in accordance with
Code Section 44-7-32 and if the initial and final damage lists required by Code
Section 44-7-33 are not made and provided to the tenant.
(b) The failure of a landlord to provide each of the written statements within
the time periods specified in Code Sections 44-7-33 and 44-7-34 shall work a
forfeiture of all his rights to withhold any portion of the security deposit or
to bring an action against the tenant for damages to the premises.
(c) Any landlord who fails to return any part of a security deposit which is
required to be returned to a tenant pursuant to this article shall be liable to
the tenant in the amount of three times the sum improperly withheld plus
reasonable attorney´s fees; provided, however, that the landlord shall be liable
only for the sum erroneously withheld if the landlord shows by the preponderance
of the evidence that the withholding was not intentional and resulted from a
bona fide error which occurred in spite of the existence of procedures
reasonably designed to avoid such errors.
44-7-36.
Code Sections 44-7-31, 44-7-32, 44-7-33, and 44-7-35 shall not apply to rental
units which are owned by a natural person if such natural person, his or her
spouse, and his or her minor children collectively own ten or fewer rental
units; provided, however, that this exemption does not apply to units for which
management, including rent collection, is performed by third persons, natural or
otherwise, for a fee.
44-7-37.
Notwithstanding any other provision of this chapter, if a person is on active
duty with the United States military and enters into a residential lease of
property for occupancy by that person or that person´s immediate family and
subsequently receives permanent change of station orders or temporary duty
orders for a period in excess of three months, any liability of the person for
rent under the lease may not exceed:
(1) Thirty days´ rent after written notice and proof of the assignment are given
to the landlord; and
(2) The cost of repairing damage to the premises caused by an act or omission of
the tenant.
44-7-50.
(a) In all cases where a tenant holds possession of lands or tenements over and
beyond the term for which they were rented or leased to the tenant or fails to
pay the rent when it becomes due and in all cases where 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 the lands or tenements desires possession of the
lands or tenements, the 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 the owner may 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, subject to the same requirements for judicial approval specified
in Code Section 18-4-61, relating to garnishment affidavits.
(b) 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.
44-7-51.
(a) 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.
(b) 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.
44-7-52.
(a) Except as provided in subsection (c) of this Code section, in an action for
nonpayment of rent, the tenant shall be allowed to tender to the landlord,
within seven days of the day the tenant was served with the summons pursuant to
Code Section 44-7-51, all rents allegedly owed plus the cost of the
dispossessory warrant. Such a tender shall be a complete defense to the action;
provided, however, that a landlord is required to accept such a tender from any
individual tenant after the issuance of a dispossessory summons only once in any
12 month period.
(b) If the court finds that the tenant is entitled to prevail on the defense
provided in subsection (a) of this Code section and the landlord refused the
tender as provided under subsection (a) of this Code section, the court shall
issue an order requiring the tenant to pay to the landlord all rents which are
owed by the tenant and the costs of the dispossessory warrant within three days
of said order. Upon failure of the tenant to pay such sum, a writ of possession
shall issue. Such payment shall not count as a tender pursuant to subsection (a)
of this Code section.
(c) For a tenant who is not a tenant under a residential rental agreement as
defined in Code Section 44-7-30, tender and acceptance of less than all rents
allegedly owed plus the cost of the dispossessory warrant shall not be a bar nor
a defense to an action brought under Code Section 44-7-50 but shall, upon proof
of same, be considered by the trial court when awarding damages.
44-7-53.
(a) If the tenant fails to answer as provided in subsection (b) of Code Section
44-7-51, the court shall issue a writ of possession instanter notwithstanding
Code Section 9-11-55 or Code Section 9-11-62; and the plaintiff shall be
entitled to a verdict and judgment by default for all rents due, in open court
or in chambers, as if every item and paragraph of the affidavit provided for in
Code Section 44-7-50 were supported by proper evidence, without the intervention
of a jury.
(b) If the tenant answers, a trial of the issues shall be had in accordance with
the procedure prescribed for civil actions in courts of record except that if
the action is tried in the magistrate court the trial shall be had in accordance
with the procedures prescribed for that court. Every effort should be made by
the trial court to expedite a trial of the issues. The defendant shall be
allowed to remain in possession of the premises pending the final outcome of the
litigation; provided, however, that, at the time of his answer, the tenant must
pay rent into the registry of the court pursuant to Code Section 44-7-54.
44-7-54.
(a) In any case where the issue of the right of possession cannot be finally
determined within two weeks from the date of service of the copy of the summons
and the copy of the affidavit, the tenant shall be required to pay into the
registry of the trial court:
(1) All rent and utility payments which are the responsibility of the tenant
payable to the landlord under terms of the lease which become due after the
issuance of the dispossessory warrant, said rent and utility payments to be paid
as such become due. If the landlord and the tenant disagree as to the amount of
rent, either or both of them may submit to the court any written rental contract
for the purpose of establishing the amount of rent to be paid into the registry
of the court. If the amount of rent is in controversy and no written rental
agreement exists between the tenant and landlord, the court shall require the
amount of rent to be a sum equal to the last previous rental payment made by the
tenant and accepted by the landlord without written objection; and
(2) All rent and utility payments which are the responsibility of the tenant
payable to the landlord under terms of the lease allegedly owed prior to the
issuance of the dispossessory warrant; provided, however, that, in lieu of such
payment, the tenant shall be allowed to submit to the court a receipt indicating
that payment has been made to the landlord. In the event that the amount of rent
is in controversy, the court shall determine the amount of rent to be paid into
court in the same manner as provided in paragraph (1) of this subsection.
(b) If the tenant should fail to make any payment as it becomes due pursuant to
paragraph (1) or (2) of subsection (a) of this Code section, the court shall
issue a writ of possession and the landlord shall be placed in full possession
of the premises by the sheriff, the deputy, or the constable.
(c) The court shall order the clerk of the court to pay to the landlord the
payments claimed under the rental contracts paid into the registry of the court
as said payments are made; provided, however, that, if the tenant claims that he
or she is entitled to all or any part of the funds and such claim is an issue of
controversy in the litigation, the court shall order the clerk to pay to the
landlord without delay only that portion of the funds to which the tenant has
made no claim in the proceedings or may make such other order as is appropriate
under the circumstances. That part of the funds which is a matter of controversy
in the litigation shall remain in the registry of the court until a
determination of the issues by the trial court. If either party appeals the
decision of the trial court, that part of the funds equal to any sums found by
the trial court to be due from the landlord to the tenant shall remain in the
registry of the court until a final determination of the issues. The court shall
order the clerk to pay to the landlord without delay the remaining funds in
court and all payments of future rent made into court pursuant to paragraph (1)
of subsection (a) of this Code section unless the tenant can show good cause
that some or all of such payments should remain in court pending a final
determination of the issues.
44-7-55.
(a) If, on the trial of the case, the judgment is against the tenant, judgment
shall be entered against the tenant for all rents due and for any other claim
relating to the dispute. The court shall issue a writ of possession, both of
execution for the judgment amount and a writ to be effective at the expiration
of seven days after the date such judgment was entered, except as otherwise
provided in Code Section 44-7-56.
(b) If the judgment is for the tenant, he shall be entitled to remain in the
premises and the landlord shall be liable for all foreseeable damages shown to
have been caused by his wrongful conduct. Any funds remaining in the registry of
the court shall be distributed to the parties in accordance with the judgment of
the court.
(c) Any writ of possession issued pursuant to this article shall authorize the
removal of the tenant or his or her personal property or both from the premises
and permit the placement of such personal property on some portion of the
landlord´s property or on other property as may be designated by the landlord
and as may be approved by the executing officer; provided, however, that the
landlord shall not be a bailee of such personal property and shall owe no duty
to the tenant regarding such personal property. After execution of the writ,
such property shall be regarded as abandoned.
44-7-56.
Any judgment by the trial court shall be appealable pursuant to Chapters 2, 3,
6, and 7 of Title 5, provided that any such appeal shall be filed within seven
days of the date such judgment was entered and provided, further, that, after
the notice of appeal is filed with the clerk of the trial court, the clerk shall
immediately notify the trial judge of the notice of appeal and the trial judge
may, within 15 days, supplement the record with findings of fact and conclusions
of law which will be considered as a part of the order of the judge in that
case. If the judgment of the trial court is against the tenant and the tenant
appeals this judgment, the court may upon motion of the landlord and upon good
cause shown order the tenant to pay into the registry of the court all sums
found by the trial court to be due for rent in order to remain in possession of
the premises. The tenant shall also be required to pay all future rent as it
becomes due into the registry of the trial court pursuant to paragraph (1) of
subsection (a) of Code Section 44-7-54 until the issue has been finally
determined on appeal.
44-7-57.
This article shall apply to croppers and servants who continue to hold
possession of lands and tenements after their employment as croppers or servants
has terminated and in the same manner as it relates to tenants.
44-7-58.
Anyone who, under oath or affirmation, knowingly and willingly makes a false
statement in an affidavit signed pursuant to Code Section 44-7-50 or in an
answer filed pursuant to Code Section 44-7-51 shall be guilty of a misdemeanor.
44-7-59.
If the court issues a writ of possession to property upon which the tenant has
placed a manufactured home, mobile home, trailer, or other type of transportable
housing and the tenant does not move the same within ten days after a final
order is entered, the landlord shall be entitled to have such transportable
housing moved from the property at the expense of the tenant by a motor common
carrier licensed by the Public Service Commission for the transportation of
manufactured housing. There shall be a lien upon such transportable housing to
the extent of moving fees and storage expenses in favor of the person performing
such services. Such lien may be claimed and foreclosed in the same manner as
special liens on personalty by mechanics under Code Sections 44-14-363 and
44-14-550, except that storage fees not to exceed $4.00 per day shall be
expressly allowed.
44-7-70.
The landlord shall have power to distrain for rent as soon as the same is due if
the tenant is seeking to remove his property from the premises.
44-7-71.
When rent is due or the tenant is seeking to remove his property, the landlord,
his agent, his attorney in fact, or his attorney at law may, upon a statement of
the facts under oath, apply for a distress warrant before the judge of the
superior court, the state court, the civil court, or the magistrate court within
the county where the tenant may reside or where his property may be found.
44-7-72.
When the affidavit provided for in Code Section 44-7-71 is made, the judge of
the superior court, the state court, the civil court, or the magistrate court
before whom it was made shall grant and issue a summons to the marshal or the
sheriff or his deputy of the county where the tenant resides or where his
property may be found. A copy of the summons and the affidavit shall be
personally served upon the defendant. If an officer is unable to serve the
defendant personally, service may be given by delivering the summons and
affidavit to any person who is sui juris residing on the premises. The summons
served on the defendant pursuant to this Code section shall command and require
the tenant to appear at a hearing on a day certain not less than five nor more
than seven days from the date of actual service.
44-7-73.
In an action for nonpayment of rent, the tenant shall be allowed to tender to
the landlord, within seven days of the day the tenant was served with the
summons pursuant to Code Section 44-7-72, all rents allegedly owed plus the cost
of the distress warrant. Such a tender shall be a complete defense to the
action.
44-7-74.
(a) At or before the time of the hearing, the defendant may answer in writing.
The defendant may answer orally at the time of the hearing. If the answer is
oral, the substance thereof shall be endorsed upon the affidavit. The answer may
contain any legal or equitable defense or counterclaim.
(b) If the tenant fails to answer, the court shall grant a distress warrant; and
the plaintiff shall be entitled to a verdict and judgment by default for all
rents due as if every item and paragraph of the affidavit provided for in Code
Section 44-7-71 were supported by proper evidence, which verdict shall be in
open court or chambers and without the intervention of a jury.
(c) If the tenant answers, a trial of the issues shall be had in accordance with
the procedure prescribed for civil actions in courts of record except that if
the action is tried in the magistrate court the trial shall be had in accordance
with the procedures prescribed for that court. Every effort shall be made by the
trial court to expedite a trial of the issues. The defendant shall be allowed to
remain in possession of the premises and his property pending the final outcome
of the litigation, provided that he complies with Code Section 44-7-75.
44-7-75.
(a) At the time the tenant answers, the tenant shall pay into the registry of
the trial court all rent admittedly owed prior to the issuance of the summons;
provided, however, that, in lieu of such payment, the tenant shall be allowed to
submit to the court a receipt indicating that the payment has been made to the
landlord. In the event that the amount of rent is in controversy, the court
shall determine the amount of rent to be paid into court in the same manner as
provided in subsection (b) of this Code section.
(b) The tenant shall pay into the registry of the trial court all rent which
becomes due after the issuance of the summons and shall pay said rent as it
becomes due. If the landlord and tenant disagree as to the amount of rent,
either or both of them may submit to the court any written rental contract for
the purpose of establishing the amount of the rent to be paid into the registry
of the court. If the amount of rent is in controversy and no written rental
agreement exists between the tenant and the landlord, the court shall require
the amount of rent to be a sum equal to the last previous rental payment made by
the tenant and accepted by the landlord without written objection.
(c) If the landlord is also seeking a dispossessory warrant against the tenant
pursuant to Article 3 of this chapter, money paid into court under Code Section
44-7-54 shall fully satisfy the requirements under subsections (a) and (b) of
this Code section.
(d) After the date of the service of the summons as provided in Code Section
44-7-72, the tenant shall not transfer, convey, remove, or conceal his property
without either posting bond as provided in Code Section 44-7-76 or complying
with subsections (a) and (b) of this Code section.
(e) If the tenant shall fail to comply with any of the provisions of this Code
section, the tenant shall not be entitled to retain possession of his property
pending a trial on the merits as provided by Code Section 44-7-74 unless he
posts bond as provided by Code Section 44-7-76. Failure to comply with any
provision of this Code section shall in no way affect the tenant´s ability to
litigate the issues raised in his answer but shall only affect the possession of
the property pendente lite. If judgment is against the tenant, the property
involved shall be seized by the marshal, the sheriff, or the deputy, as the case
may be, and held thereby for levy and sale after judgment as provided by Code
Section 44-7-79.
(f) The court shall order the clerk of the court to pay to the landlord the
amounts paid into the registry of the court as such payments are made; provided,
however, that, if the tenant claims that he is entitled to all or a part of the
funds and such claim is an issue of controversy in the litigation, the court
shall order the clerk to pay to the landlord without delay only that portion of
the funds to which the tenant has made no claim in the proceedings. That part of
the funds which is a matter of controversy in the litigation shall remain in the
registry of the court until a final determination of the issues.
44-7-76.
In all cases where the tenant may desire to transfer, remove, or convey any of
his property after the service of summons, the tenant shall post bond with good
security for a sum equal to the value of the property or the amount of the rent
alleged to be due, whichever is less, to be estimated by the judge, for the
delivery of the property at the time and place of sale if the property shall be
found subject to such rent. Upon the approval of the bond by the judge, the
tenant may convey, transfer, or remove his property without restriction.
44-7-77.
(a) If, on the trial of the case, the judgment is against the tenant, the
judgment shall be entered against the tenant for all rent due and for any other
claim relating to the dispute and the distress warrant shall be granted.
(b) If the judgment is for the tenant, he shall be entitled to remain in the
premises and in possession of his property and the landlord shall be liable for
all foreseeable damages shown to have been caused by his wrongful conduct. Any
funds remaining in the registry of the court shall be distributed to the parties
in accordance with the judgment of the court. If the tenant has been deprived of
the possession of his property pendente lite pursuant to subsection (e) of Code
Section 44-7-75, the court shall order that the property be returned immediately
to the tenant.
44-7-78.
Any judgment by the trial court shall be appealable to the appellate court
pursuant to Chapters 2, 3, 6, and 7 of Title 5. If the judgment of the trial
court is against the tenant and the tenant appeals this judgment, the tenant
shall remain in the premises and in possession of his property; provided,
however, that the tenant shall comply with all provisions of Code Section
44-7-75 or 44-7-76 until the issue has been finally determined on appeal.
44-7-79.
Whenever a distress warrant is granted pursuant to this article, the distress
warrant may be levied by the marshal, the sheriff, or the deputy on any property
belonging to said tenant whether found on the premises or elsewhere; and the
marshal, the sheriff, or the deputy shall advertise and sell the property in the
same manner as in the case of levy and sale under execution.
44-7-80.
The landlord´s lien for his rent shall attach from the time that the affidavit
is made pursuant to Code Section 44-7-71; but it shall take precedence over no
lien of older date except as to the crop raised on the premises.
44-7-81.
A third person may make a claim to the distrained property by giving the oath
and the bond as is required in cases of other claims. Such a claim shall be
returned and tried as is provided by law for the trial of the right of property
levied upon by execution.
44-7-82.
(a) As used in this Code section, the term 'mobile home' means a movable or
portable dwelling over 32 feet in length and over eight feet wide which is
constructed to be towed on its own chassis and to be connected to utilities and
is designed without a permanent foundation for year-round occupancy. A mobile
home may consist of one or more components that can be retracted for towing
purposes and subsequently expanded for additional capacity or may consist of two
or more units separately towable but designed to be joined into one integral
unit.
(b) A tenant´s mobile home, as defined in subsection (a) of this Code section,
shall be considered 'property,' as that term is used in this article.
44-7-100.
Where a person is employed to work for part of the crop, the relationship of
landlord and tenant does not arise. The title to the crop, subject to the
interest of the cropper therein, and the possession of the land remain in the
owner of the land.
44-7-101.
Whenever the relationship of landlord and cropper exists, the title to and right
to control and possess the crops grown and raised upon the lands of the landlord
by the cropper shall be vested in the landlord until the landlord has received
his part of the crops so raised and has been fully paid for all advances made to
the cropper in the year the crops were raised for the purpose of raising the
crops.
44-7-102.
In all cases where a cropper unlawfully sells or otherwise disposes of any part
of a crop or where the cropper seeks to take possession of such crops or to
exclude the landlord from the possession thereof while the title thereto remains
in the landlord, the landlord shall have the right to repossess the crops by any
process of law by which the owner of the property can recover it under the laws
of this state.
44-7-103.
(a) Any cropper who sells or otherwise disposes of any part of the crop grown by
him without the consent of the landlord before the landlord has received his
part of the crop and payment in full for all advances made to the cropper in the
year the crop was raised for the purpose of raising such crop shall be guilty of
a misdemeanor.
(b) Any landlord who fails or refuses, on demand, to deliver to the cropper the
part of the crop or its value to which the cropper is entitled after payment for
all advances made to him as provided in subsection (a) of this Code section
shall be guilty of a misdemeanor.