Timothy G. Cook, Attorney At Law

Marietta Bankruptcy, Family Law and Contract Law Attorney

Tenant FAQs

In my landlord tenant law practice I only represent landlords. As a general rule, if you can’t pay the rent you can’t pay an attorney. As a public service I have tried to put together a list of frequently asked questions that tenants repeatedly ask me regarding their leases in the state of Georgia. In using this information please understand that your circumstances may be different and the information provided may not be adequate enough for your situation. Additionally use of this information does not constitute my representation of you in your legal dispute with the landlord. Please be aware that the commercial leases are different from residential leases and that the following answers do not apply.
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[accordion_tab header=”I have moved out of my apartment before the lease is over. What expenses is the landlord entitled to for my breach of the lease?”]If there was a written lease between the parties, the landlord is entitled to be compensated on the following basis. If the written lease does not specify terms upon which the tenant may terminate the lease before the term is up, the landlord is entitled to rent up until the date the Court issues a writ of possession to the landlord or the date the landlord assumes possession of the premises after the tenant has abandoned. You should be aware that if you abandon the premises the landlord does have the right to leave the property alone and let rent accrue against the tenant until the end of the lease. The landlord than can go into court and seek damages for unpaid rent for the term of lease. If there is no written lease between the parties a landlord must give 60 days notice to the tenant to terminate the lease and the tenant must give 30 days notice to the landlord in order to terminate the lease. If the tenant vacates without notice under a verbal lease a landlord can seek rent for the 30 days the landlord should have been given notice for. Many big commercial apartment landlords have provisions written into the residential leases regarding early termination of the lease. Unless the terms are outrageous, the most effective way for the tenant to terminate the lease is to follow the exact provisions as worded in the lease. It is important to understand that if you negotiate something different with the landlord regarding termination and it is not in writing, the terms of the written lease agreement will apply. If you had a written lease and the lease is over in most cases the terms for default under the written lease will still apply. Read your old lease to see what the terms of default were and if you are considered to be a tenant holding over..[/accordion_tab]
[accordion_tab header=”My air conditioning has not worked for a month. I have called my landlord but he will not fix it. Should I just move out?”]In Georgia the landlord has an absolute duty to maintain and repair the premises. The landlord has a duty to make repairs to the extent necessary to render the premises suitable for use intended by the tenant other than defects that were clearly obvious to the tenant upon execution of the lease agreement. If you accept an apartment with a broken window, the landlord may not have to replace the window.This has become a big problem because many landlords cannot afford to maintain the leased premises because they are renting houses they could not sell and cannot afford to pay the bills for. The landlord cannot delegate their responsibility to the tenant to keep the premises in repair. The landlord must perform the repairs in a reasonable time period. If the landlord is given notice of a problem typically a Judge will not penalize them if the repairs are performed within a two to three week time frame. You’re not going to be able to drag the landlord into court if he fails to make the repairs within a week of your complaint. If you call the landlord and they do not respond that it is important to notify the landlord immediately in writing about the repairs to be made. If the landlord still does not make the repairs, a tenant in Georgia has the following options. You can notify the landlord in writing that you are making the repairs and will present the landlord with a bill for the repairs. If the landlord refuses to pay the bill then you are allowed to deduct the repair bill from the rent and submit the bill along with your reduced rent check to the landlord.

As a tenant you can continue to occupy the premises without the repairs being made, and file a lawsuit against the landlord in Magistrate court for their failure to perform the necessary repairs.

It is very important to understand that the duty of the tenant to pay rent and duty of the landlord to repair the premises are two separate contractual duties. If you refuse to pay the rent because the landlord did not make the repairs, the landlord can still evict you from the leased premises. You will have a counterclaim against the landlord for failure to make repairs, but you will be out on the street.[/accordion_tab]
[accordion_tab header=”I could not pay the full rent this month. The landlord accepted half the rent from me and let me stay. Can the landlord now evict me?”]A landlord may try to evict you on the theory that he has a written lease between the parties and by that lease he is owed so much rent each month. In Georgia though if a landlord accepts a lesser amount of rent for the month and does not give you notice that he demands the full amount of the rent, a Court will find that he agreed to the lower amount of rent for the month as the amount of monthly rent for the leased premises. If you pay the rent in full and on time the next month, the landlord will have a very difficult time trying to evict you.[/accordion_tab]
[accordion_tab header=”My lease is up and I have cleaned the place up and left. The landlord refuses to return my $500.00 security deposit. How can I get my deposit back?”]This is perhaps one of the most misunderstood areas of landlord tenant law. Because of abuses Georgia does have tough laws regarding tenant security deposits. The first important thing to note is that none of Georgia’s laws on security deposits apply to an individual landlord who is renting 10 or fewer properties. If you are renting from Mrs. Jones who has one rental house, she is not liable for damages under the provisions of Georgia law regarding security deposits. She could be liable if she is using a management company to rent the property and they are involved with the rental of 10 or more units. Even though the following does not apply to the small landlord, I advise all of my landlords to follow the procedures below so there is no question in Court as to the condition of the leased premises. If the Georgia statutes apply to the landlord then the following must take place. If the landlord accepts a security deposit from you they must place it in a separate bank account. They must notify you of the bank account where the money has been placed. When you move into the property the landlord must complete a move-in inspection. The landlord is required to have you sign the move-in inspection. Any problems or defects in the property should be noted on the inspection sheet and both parties should sign and date the inspection when it is complete. When you move out to landlord is responsible for performing a move out inspection with you present. The landlord must set up a mutually agreed upon time to perform the inspection. If you fail to meet the landlord to perform the inspection, the landlord is allowed to perform the inspection on their own. After performing the inspection, the landlord is required to provide the tenant within 30 days of the end of the tenants occupation of the leased premises with the details of expenses for repairs and cleaning the landlord has sustained. The landlord can not charge you for expenses that are attributable to normal wear and tear to the leased premises. The landlord cannot charge you for painting the premises if there are a few dirt spots on the walls. The landlord is entitled to deduct the expenses from your security deposit and return the balance to you with an explanation of the expenses deducted. If the landlord fails to follow the Georgia statutes they may be subject to damages in the amount of three times the security deposit. It is also important to remember that a tenant does not have the right to substitute his security deposit for unpaid rent that he owes. The landlord can still keep your security deposit and go after you for unpaid rent.[/accordion_tab]
[accordion_tab header=”I want to move out of my apartment. The landlord has failed to keep the place repaired. A friend of mine told me that I can move out and claim constructive eviction against the landlord. Does this mean that I will not be liable for rent and the landlord may be subject to additional damages?”]Constructive eviction has become an often used defense by tenants. The typical situation involves the tenant desiring to terminate the lease on the basis of the landlord failing to keep the premises repaired. Constructive eviction under Georgia law means that the leased premises cannot be used at all for the purposes designated under the lease. Mere inconvenience the tenant will not be enough. Constructive eviction can mean the tenant has been denied access to the property by the actions of the landlord in changing the locks while the lease is still in effect. Tenants in recent years have tried to use mold buildup, poisonous spiders, and building code violations as a possible constructive eviction action against the landlord to get out of a lease. In the majority of cases these defenses fail. If you have a mold problem or spiders, the tenant should first notify the landlord of the repairs that need to be made to the premises. The landlord has the problem of correcting the mold problem or exterminating the spiders. If the landlord takes corrective action to fix the problem then you can’t claim constructive eviction by the landlord. It is very hard for the tenant to claim building code violations against the landlord. Again the landlord has a duty to repair, they do not have a duty to correct building code violations that the builder of the apartment failed to comply with. The one time a landlord will run into problems is when they have actual constructive knowledge that a major defect existed, such as propensity for the house to flood and they did not inform the tenant at the time the lease was executed.[/accordion_tab]
[accordion_tab header=”Another tenant caused a fire in our apartments. My personal property has been damaged. Is the Landlord liable for the damages to my property?”]BEFORE YOU MOVE IN SECURE RENTER’S INSURANCE ON YOUR PERSONAL PROPERTY. Time and time again tenants call me regarding break-ins to their leased premises or damages to their property from smoke, water, mold, or fire. Under Georgia law as in most states the Landlord is not liable for damages to your personal property. You cannot hold the landlord liable for the negligence or deliberate acts of others that caused the damage. Neither can you hold the Landlord responsible for acts of God or damages from the simple failure of structural parts of the leased premises. Renter’s insurance is cheap and it is worth every dime when disaster happens. The only time you can make a claim against the Landlord is when the destruction of your property is a result of the intentional negligence of the landlord. This argument can be made if the sprinkler system or installed fire alarms do not go off and damage to your property could have been averted. The landlord can be held accountable if it was due to their negligence. If the Landlord fails to make repairs that could have prevented the damage they may be accountable. An example would be the landlord’s maintenance man wires the apartment incorrectly causing a fire. The majority of these types of claims should first be made against the Landlord’s liability insurance for the property. Landlords will discourage you from making a claim against their insurance policy, so be persistent. If the insurer fails to compensate the tenant then the tenant should pursue a legal action against the Landlord.[/accordion_tab]
[accordion_tab header=”I have been served with lawsuit to evict me. Is it even worth it to go to Court and defend myself?”]If you have been personally served with a lawsuit it is important to file an answer in Georgia with the Court within 7 days after being served. If you just show up in Court you may still lose if you didn’t file an answer to the landlord’s lawsuit. If you simply move out and don’t file an answer the landlord may get a default judgment against you for whatever damages they want. When you go to Court speak with the landlord or the landlord’s attorney and see if you can work out a solution. In Georgia, a tenant has the right to pay up the rent owed plus the court costs of filing the lawsuit within 7 days of being served and the landlord’s suit is dismissed. If the landlord refuses to accept the late rent from you in the seven days then file an answer and the Judge can make the landlord accept the tendered rent. The tenant can only tender rent in this fashion to a lawsuit one time a year. If you can work something out with the landlord to peacefully bring an end to the lease and what monies you owe, both parties need to write out a settlement agreement or consent order and sign it. The consent order is then presented to the Judge for signature. Never agree verbally that you will rely upon the landlord or the attorney for the landlord to take care of the agreement without something in writing being given to you and signed. Keep in mind that you do not have to vacate the leased premises until the landlord has been given a writ of possession to the apartment by the Court.[/accordion_tab]
[accordion_tab header=”I came back to my apartment and found all of things on curb by the street. It has been raining and a lot of personal items have been ruined. Is the landlord liable to me for my damaged items?”]Some tenants never get it. They figure the landlord will just leave them alone. If you just avoid anything the landlord sends you in the mail or by the sheriff you may be very surprised. Prior to evicting you a landlord is required to make a demand for possession of the premises either verbally or in writing. In Georgia a landlord may file a dispossessory or lawsuit against the tenant and have the lawsuit served on the leased premises and not you. The sheriff will simply tape the lawsuit to the door of your apartment. If you don’t file an answer to the lawsuit or show up in Court, the landlord in all likelihood will get a writ of possession for the leased premises. After seven days the landlord can contact the local sheriff or marshal and set up an eviction. The sheriff stands by while a moving crew puts your possessions on the curb. After that there is no liability on the part of the landlord. Your possessions are up for grabs by whoever drives by and the weather may destroy your possessions. [/accordion_tab]
[accordion_tab header=”I have lost my job and cannot pay the rent. Should I file Chapter 13 bankruptcy and stay in the apartment until I can get back on my feet?”]Under Bankruptcy law prior to October 2005, the tenant could file bankruptcy and be given an opportunity to make up the back payments as long as they paid the current rent on time in a chapter 13 case. Even without doing this the tenant could end up staying rent free in the apartment for up to two months before some type of action was taken against them in Bankruptcy and State Court in a Chapter 7 or 13 case. This resulted in some tenants repeatedly filing and dismissing chapter 13 cases to stay in their apartment. In many cases even if the landlord had a judgment from the lower state court and was in the process of evicting the tenant it was still possible to forestall eviction. Under the new bankruptcy law the tenant must assume or reject a lease within 60 days of filing a bankruptcy petition. The tenant must either have the rent current to assume the lease or make adequate assurances to the landlord by depositing additional sums of money with either the Bankruptcy Court or the landlord that they have the ability to pay the lease while in bankruptcy. Under the new bankruptcy law if a landlord has already obtained a judgment against the tenant in the lower state court but has not evicted the tenant, the tenant must deposit the current rent with the Bankruptcy Court upon filing his bankruptcy petition. The tenant must also overcome the presumption that the lease has been terminated with the lower court judgment, and the lease no longer exists in the eyes of the Bankruptcy Court to be assumed. The penalties for repeat filers of bankruptcy within a one year period are now much stiffer. Be very careful before filing a bankruptcy just to stop an eviction. You may still be evicted, lose your credit rating, and be in more trouble if you have to file bankruptcy again.[/accordion_tab]
[accordion_tab header=”I signed a lease purchase agreement with the landlord. I could not pay the rent this month and the landlord has sent me a letter terminating the lease purchase agreement and demanding possession of the premises. Do I lose my right to purchase the property?”]Poorly written lease purchase agreements are without a doubt the most litigated issue in landlord tenant courts. If you are going to enter into this type of agreement with the owner/landlord you should have an attorney review the contracts before you sign them. Invariably, the tenant is going to lose on these poorly written contracts. Even real estate agents make mistakes in drafting the contracts correctly. The important thing to remember is there are two separate contracts involved in a lease purchase deal. You have a lease agreement to rent the property and an option contract to purchase the property. Make sure that if you breach the lease agreement you don’t lose your right to purchase the property. The common mistakes committed in these contracts are that the terms of the two contracts conflict with each other as to the tenant’s performance. An example would be a lease agreement that states if the tenant fails to pay the rent the purchase option is terminated. An option to purchase the property must be in writing. It cannot be a verbal contract between the parties. For an option to purchase to be valid it must identify the specific property, it must state the time period the option is valid for, and it must state the exact amount the property can be purchased for. The tenant must give something of value typically money in consideration for being given the option to purchase the property. Make sure that you are not dealing with an owner who is financial trouble before entering into a lease purchase agreement. Your option is not worth the paper it is written on if the house is foreclosed on or the owner surrenders the property in bankruptcy?[/accordion_tab]
[accordion_tab header=”I just got a call from a foreclosure attorney telling me I have to get out even though I paid the landlord the rent for this month. Do I have to leave or do I have any right to stay?”]This is becoming a big problem. Desperate landlords have moved somewhere else and cannot sell their house. So they rent the house out and rob Peter to pay Paul to make their two mortgage payments. Your rent payment is used to pay for something else other than the mortgage on the property you are leasing. The mortgage company after two or three months of not being paid starts foreclosure proceedings against the owner (landlord). The property is sold on the courthouse steps to a new owner or the mortgage company buys it for what they are owed. With a lease in Georgia, you do not have a right by title or secured interest to stay in the property if the new owner does not want you there. Your first move is to speak with the new owner and see if they are willing to continue the lease or not. If not, then your only recourse is to file a lawsuit against the landlord for breach of contract. You should try to seek damages for the cost of moving and acquiring a new place to live, for the rent you paid for the period you were told to leave, and possibly for the differential in rent if you have to rent something more expensive over the balance of the term of the original lease you had with your landlord.[/accordion_tab]
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