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6 Common Questions to Know When Evicting Tenants

Posted by Bonny Plemons on May 18, 2016
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“This tenant is destroying my property and hasn’t paid rent, HELP!!”
“Rent is a month late. I haven’t heard from my tenant in weeks. Can I consider the property abandoned?”
Evicting tenants can be a scary experience for all parties involved, and in the end, no one really wins. Residents “forget” to pay, lose their job, get divorced, or have a major crisis; you can evict and get possession of your property back.

 

When can eviction take place?

In Georgia, the courts allow for protection of landlords and tenants. Although most tenants don’t read their lease thoroughly, it spells out exactly what happens if the terms of the lease are not carried out. Eviction doesn’t always happen when a tenant doesn’t pay rent. The action of expelling a tenant from a property can be for multiple reasons:  breach of contract, default in rent, unauthorized pets, and destruction of property are all examples of when eviction may make sense. The law is clear with the obligations of landlords and tenants. Although Georgia statutes are silent on the subject, case law seems to suggest that if the landlord fails to make a necessary repair (that is, a repair that goes beyond the normal wear and tear of the rental unit, like the water heater quitting), then the tenant can arrange for the repair and deduct the amount of the repair from the rent. It is best to check your lease to ensure if violations do exist. In some cases, a resident will correct the issue or pay an increased deposit for pets for example, or even agree to move out by a specific date. Communication is key during this process. You cannot consider a property vacant because it “looks” like they aren’t living there.

 

Can I file eviction without notice to tenant?

A landlord cannot place tenant’s possessions on the street without a court order. To begin the legal process, the tenant must first receive a Notice to Pay Rent or Quit from the landlord. Before filing a dispossessory action the landlord must provide written notice demanding the tenant immediately give up possession and vacate. There is no set time frame for how long the landlord must give the tenant before filing the paperwork for the eviction proceedings. If the tenant does not voluntarily vacate, the landlord may file a dispossessory affidavit. Surprisingly, the threat of eviction in most cases is enough to get a tenant to pay rent or move out.

 

What happens when eviction is filed with the court?

Dispossessory Claims are filed in Magistrate Court. Tenants are served by a process server or sheriff and given 7 days to respond with the reasons rent is unpaid. The seven-day time frame includes weekends and holidays, but if the seventh day falls on a weekend or holiday, the tenant will have until the following business day to file the answer with the court. If no response is received from the tenant, the owner would file the writ of possession and the residents would need to vacate within 24 hrs. If they ignore the vacate request, a lock out date would be scheduled and their possessions would be set out of the home with a sheriff present. Once your case is called, the judge will ask the tenants why they have not paid the rent. Financial hardship is not an excuse for not paying. The judge will listen sympathetically, then recommend that the two parties meet with a mediator, perhaps right then and there, to try to work out a payment schedule.

 

Payments…but its $500 and I want it! Can I accept?

Many times tenants will try to pay part of the balance owed prior to court dates. While it is very tempting to accept “some money” when you haven’t received rent in a month or two, you may regret it. If funds are accepted after the court case has been filed, the case will be dismissed. If the Tenant makes Payment in full, including rent, late fees, and all court costs, they can stop an eviction. If offered, the landlord must accept the rent; however, the tenant can only stop an eviction once a year in this way. The only way to stop an eviction dead in its tracks is to file for protection under the federal Bankruptcy Act. As of the date of filing the bankruptcy, the tenant must continue to pay rent.

 

Do repairs affect rent being paid?

Some tenants will file a counterclaim for repairs, meaning the tenant has a damage claim for failure to repair. In some cases, funds can be withheld in an escrow account or within the court system if the home is deemed uninhabitable. Landlords then makes the repairs and the tenants pay rent. The courts do allow for “repair and deduct” strategy in which tenants pay for the repairs and deduct from future rent. In this case a tenant would have to prove the landlord was aware of the repairs needed.

 

Why hire a professional property manager?

The advantage to hiring a property manager goes beyond finding a tenant to occupy your home. There is a multitude of applicable laws and regulations to abide by when renting and maintaining your rental property. These include local, state and federal regulations, as well as fair housing regulations (such as the ADA). A property manager can help you avoid lawsuits by keeping your property up-to-date and in compliance with these regulations. Collecting rent, receiving emergency repair calls at all hours, dealing with eviction, not to mention knowing fair housing laws, allows property owners to have peace of mind and hopefully invest in more homes for their future.

 

For more information on evictions, email sales@trustbravo.com. This blog was contributed by Bonny Plemons.

 

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