Frequently Asked Questions - Landlord/Tenant
MY LANDLORD HAS FAILED TO MAKE REPAIRS TO THE PREMISES, WHAT CAN I DO?
After the tenant has given reasonable notice of a defect to the landlord, and the landlord has failed to make the repair within a reasonable time, the tenant may make reasonable repairs and deduct the reasonable cost from the rent, or the tenant may file a lawsuit against the landlord for damages arising from the failure to repair. If the landlord has filed suit against the tenant, the tenant may seek recoupment for any dimunition in value of the leasehold caused by the landlord's failure to repair.
I HAVE BEEN SERVED WITH A SUMMONS FOR A DISPOSSESSORY ACTION, WHAT CAN I DO?
Upon service of a summons of a dispossessory action, the tenant has seven days to file an answer in the magistrate court clerk's office. Failure to file the answer within seven days of service of the summons, may result in a writ of possession being issued against the tenant.
THE LAST DAY TO FILE MY ANSWER FALLS ON A WEEKEND, AND THE MAGISTRATE COURT CIVIL DIVISION IS CLOSED, WHAT CAN I DO?
When the last day to file an answer falls on a weekend day or a legal holiday, then the answer may be filed by close of the next business day.
CAN I EVICT THE TENANT FROM MY RENTAL PROPERTY?
No. A landlord may legally remove a tenant and the tenant's property from rented premises only under the dispossessory procedure. If a landlord uses self-help to evict a tenant without a dispossessory it is a tort for which the tenant may recover damages in a civil action, and a landlord who cuts off utilities may be subject to misdemeanor prosecution under OCGA 44-7-14.1.
WHERE DO I FILE A DISPOSSESSORY ACTION TO EVICT MY TENANTS?
A dispossessory action should be filed in the county where the property is located.
WHAT ARE THE REQUIREMENTS FOR A LANDLORD FILING A DISPOSSESSORY ACTION?
The relationship between the parties must be landlord and tenant.
The tenant must be either a tenant holding over, a tenant at will, a tenant at sufferance, or not paying rent as it becomes due.
The landlord must have made a demand for possession of the premises prior to commencement of the proceedings.
HOW MUCH DOES IT COST TO FILE A DISPOSSESSORY ACTION?
The filing fee for dispossessory claims in the Magistrate Court of Lumpkin County is $59.50.00. If you win your case, the court will usually order the losing party to pay the court costs.
HOW DOES THE TENANT KNOW THAT HE OR SHE IS BEING SUED?
You must have the Tenant(s) served with a copy of the Dispossessory Action. This is ordinarily done by the Sheriff at a charge of $25.00 per Defendant. You may include this payment with the payment of the filing fee to the Clerk of Court who will forward the service fee to the Sheriff.
CAN I MAIL THE DISPOSSESSORY COMPLAINT TO THE COURT?
No. You must come to the magistrate court and be sworn in front of a judge or clerk of the court in which the land lies.
WHAT ITEMS MAY BE INCLUDED IN A DISPOSSESSORY COMPLAINT?
The complaint may include a demand for possession of the premises, past due rents, utilities, late fees, attorneys' fees, and other damages related to the landlord-tenant relationship.
CAN I INCLUDE A CLAIM FOR DAMAGES DONE TO THE PREMISES DURING THE TERM OF THE LEASE?
You may file a claim for damages done to the premises during the term of the lease. However, if the tenant is still in possession of the premises at the time of the dispossessory hearing, you may not recover a judgment for damages done to the premises at the dispossessory hearing, because the extent of the damages and cost of repairs can not always be accurately ascertained until the tenant has vacated the premises. As a general rule, another civil action is required to obtain a judgment for any damages done to the premises.
HOW MUCH DOES IT COST TO FILE A DISPOSSESSORY ACTION?
The cost for filing the dispossessory action is $59.50.00.
HOW IS THE SUMMONS AND DISPOSSESSORY ACTION SERVED ON THE TENANT?
Personal service on the tenant of the dispossessory complaint and summons must be attempted. In the event the sheriff cannot serve the tenant personally, the sheriff may serve the dispossessory complaint and summons, sui juris, i.e. to any person residing at the premises of suitable age and discretion. If the sheriff is unable to obtain personal or sui juris service of the summons and dispossessory complaint on the tenant, the summons and dispossessory complaint may be had by tack and mail, i.e. posted on the door of the premises, and on the same day of posting, the sheriff's office must mail a copy of the summons and dispossessory complaint to the tenant at the tenant's last known address.
DOES IT MATTER WHAT TYPE OF SERVICE OF THE SUMMONS AND DISPOSSESSORY ACTION IS HAD ON THE TENANT?
Yes, and No. If the only relief sought by the landlord is possession of the premises, then personal, sui juris, and tack and mail service is sufficient. If the landlord is seeking possession of the premises and a money judgment against the tenant, then you must have personal or sui juris service on the tenant. If the landlord seeks to have a money judgment and possession of the premises, the landlord should note on the return of service "personal or sui juris service," to notify the sheriff's department as to the type of service sought.
THE TENANT FAILED TO FILE AN ANSWER WITHIN 7 DAYS FROM SERVICE OF THE SUMMON, WHAT CAN I DO?
When the tenant fails to file an answer within 7 days of service of the summons, the landlord may contact the magistrate court's office about presenting the writ of possession to a judge for signature.
THE TENANT HAS FILED HIS OR HER ANSWER, WHEN WILL THE HEARING BE HELD?
After an answer is filed in a dispossessory action, the court schedules the hearing for the next available dispossessory calendar. Dispossessory calendars are usually scheduled every Monday evening at 6:30 p.m.
I MISSED THE TIME TO FILE AN ANSWER, CAN I FILE A LATE ANSWER?
While you may file a late answer, it will not prevent a landlord from contacting the magistrate court's office about presenting the writ of possession to a judge for signature.
THE LANDLORD ACTUALLY OWES ME MONEY, WHAT CAN I DO?
Along with your Answer, you can file what is called a Counterclaim, which is, essentially, a Statement of Claim filed by the Tenant against the Landlord.. (See the information on Statements of Claim, above.) If your Counterclaim exceeds the jurisdictional limits of the Magistrate Court, the case will be transferred to a court that does have jurisdiction. Usually the entire case will be transferred. However, there may be some cases where the Landlord's claim will remain in Magistrate Court and the Tenant's counterclaim will be transferred separately.
IS THERE A COST TO FILING AN ANSWER OR A COUNTERCLAIM?
No, court costs are paid by the Landlord when the case is filed. However, the Tenant may be ordered to pay these costs to the Landlord if the Landlord wins his or her case.
You should bring with you all persons who have direct knowledge of the facts related to your case and any documents, photographs, repair bills, receipts, samples, or other physical evidence which you feel would help the Court better understand your case.
CAN I BRING LETTERS OR AFFIDAVITS FROM WITNESSES TO THE COURT?
No, all testimony must be presented by live witnesses who have direct knowledge of the facts to which they testify. If the witness is not physically present in court, under oath, and subject to cross examination, their statements may not be presented to the Court. To do otherwise would violate the Georgia law against "hearsay" evidence.
CAN I TELL THE COURT WHAT AN ABSENT WITNESS TOLD ME?
No, the person actually making the statement must be present to testify.
CAN I PRESENT THE COURT WITH ESTIMATES OF REPAIR?
In most cases the Court will allow the limited use of repair estimates. However, this exception is limited to use of the repair estimates to establish the basis of your opinion as to what it will cost to repair the damage to the property. Any other information contained in the estimate, such as an opinion as to the cause of the damage, must be presented through the testimony of the person who formed that opinion, usually the person who prepared the estimate.
HOW DO I MAKE WITNESSES COME TO COURT?
You can compel a witness to appear in court by serving a subpoena on that person. You can obtain a subpoena from the Clerk of Court. There is no charge for a subpoena. The witness must be served with the subpoena at least twenty-four (24) hours before the time scheduled for their appearance. The party subpoenaing a witness must pay the witness a fee of $20.00. If the witness must come from another county, the witness is also entitled to receive reimbursement for round-trip mileage from their home or residence to the courthouse at the rate of $0.22 per mile.
WHEN DO I HAVE TO PAY THE WITNESS?
For a witness from within the county, the appearance fee may be paid at the time the witness appears for court. For a witness from outside the county, the appearance fee and mileage reimbursement must be given to the witness at the time the subpoena is served on the witness. The payment must be made by cash, money order, certified check, or cashier's check.
CAN I PRESENT EVIDENCE OTHER THAN THE TESTIMONY OF WITNESSES?
Yes, you can present physical evidence, or exhibits. These are physical items, such as photographs, contracts, leases, samples, receipts, etc. that you want the Court to look at before making a decision in your case. The exhibit must be relevant to the issues in your case. You must also allow the other party to review the exhibit before you present it to the Court. An exhibit is not simply handed to the Court. You, or another witness, must identify the exhibit, which means to explain what the exhibit is and how it is related to the case.
CAN I SUBPOENA RECORDS AND DOCUMENTS AS WELL AS PERSONS?
Yes, there is a different subpoena for documents or things known as a "subpoena duces tecum." It should be served on the custodian of the document being subpoenaed. Just let the Clerk of Court know the type of subpoena you want.
HOW MUCH EVIDENCE WILL I NEED IN ORDER TO WIN MY CASE?
There is no specific amount of evidence required from either party. The Landlord has the burden of proving his or her case. The Tenant has the burden of proof on any counterclaim. The party with the burden of proof must establish his or her case by what is known as a preponderance of the evidence. That basically means that the evidence produced by that party must be more persuasive than the evidence produced by the other party. If, after hearing all of the evidence, the Court is not persuaded that one party or the other should prevail, the case will be decided against the party which had the burden of proof.
DO I HAVE TO PROVE ALL OF MY CASE BY THE SAME STANDARD OF EVIDENCE?
Yes, the burden of proof applies to each and every element of your case. Failure to carry that burden as to only one element means that you have not proven your case. If you will use the analogy of a track and field event, trying a case is like running the hurdles. If you fail to successfully jump every hurdle, you cannot win the race. In court, each element of your claim may be considered a hurdle. Once you knock a hurdle down, you have lost your case.
HOW ARE CASES PRESENTED IN COURT?
Because the Landlord has filed the case and carries the burden of proof, he or she gets to present evidence first. The Landlord will call all of his or her witnesses first. After a witness testifies, the other party has an opportunity to cross examine that witness. When all of the Plaintiff's witnesses have testified and been cross examined, the Tenant calls his or her witnesses, who may also be cross examined by the Landlord.
WHAT IF I FORGET TO TELL THE COURT SOMETHING OR THE OTHER SIDE BRINGS UP SOMETHING I DID NOT ANTICIPATE?
The Landlord will generally be allowed to present what is called rebuttal evidence. That is new evidence dealing with issues that you did not cover in your initial presentation and to rebut evidence presented by the other party after your initial presentation. The Tenant will then be allowed to present what is called sur-rebuttal evidence to answer the new evidence presented in the Plaintiff's rebuttal.
HOW DO I CROSS-EXAMINE A WITNESS?
To cross-examine a witness is to ask that witness questions about the testimony they have already given or about other facts and circumstances that are relevant to the case being tried. Please note that cross-examination involves asking questions and allowing the witness to respond. Cross-examination does not allow one to make a speech, argue with a witness, call the witness names, or to tell the witness what you wanted then to say. Your questions may be leading, that is they may suggest the answer you want them to give, but you must ask questions. You may also ask the witness questions aimed at proving the motive of the witness, the witness' interest in the outcome of the case, any prejudice the witness may have toward one of the parties in the case, prior inconsistent statements made by the witness, and other factors which reflect on the credibility of the witness.
You can object to the introduction of evidence if it is legally inadmissible under the rules of evidence. You may not object to evidence because you disagree with it or believe it is untrue. If you make an objection, you should stand up, state your objection and its basis as briefly as possible, and allow the Court to rule on the objection. For example, "Objection, the testimony is hearsay." The Court will allow the other side to respond to the objection and then make a ruling as to whether the evidence will be admitted. Please note that the fact that the Court has allowed the evidence to be presented does not mean that the evidence will be credited or believed by the Court or that it is considered to be conclusive as to the issues covered by that evidence.
WHEN DO I FIND OUT WHO WON THE CASE?
After both sides have finished presenting evidence, the Judge will usually decide the case and announce a decision from the bench. After announcing his or her decision, the judge may issue a writ of possession that directs the sheriff to turn over possession to the landlord, and the judge will give both parties a copy of the judgment, which is the document containing the Court's decision. The judgment will specify which side prevailed and if money damages are being awarded, the amount of those damages.
HOW DO I GET MY JUDGMENT PAID?
A judgment is a finding by the Court that one party has a legal obligation to pay the other party a specified amount of money. It may not be redeemed with the Clerk of Court for money nor is it a Court order to pay that money by a date certain. However, the judgment does give you certain rights to try to collect that money from the other side using the assistance of the courts.
BASIC OUTLINE OF POST-JUDGMENT COLLECTION PROCEDURES
A. WRIT OF FI FA:
A writ of Fi Fa is a document that is issued by our clerk's office for the purpose of recording a lien on the judgment debtor's property. It is also the legal instrument by which the sheriff of a county may seize the assets of a judgment debtor. A writ of Fi Fa may be issued on a default judgment case immediately. If the case was contested, then a writ of Fi Fa may not be issued until 10 days after the date of judgment. The cost for a writ of Fi Fa is the sum of $7.00.
A writ of Fi Fa may also be used to perfect a lien upon any motor vehicles that the judgment debtor owns. There is a special process to go through in perfecting that judgment lien. Appropriate forms are available to you through the Georgia Department of Revenue, Division of Motor Vehicles. You must send a self addressed envelope, a check for $1.00 for each vehicle and a copy of the Fi Fa to: Dept. of Revenue, Motor Vehicle Div., Trinity-Washington Bldg., Atlanta, Ga., 30334.
A writ of Fi Fa is recorded by our court for you upon the General Execution Docket, which is maintained by the Clerk of Superior Court. If you know of any other real property or seizable assets the judgment debtor owns in other counties, you should apply to the clerks of such counties to have writ of Fi Fa recorded upon the General Execution Dockets of those counties, as well.
When the judgment is paid in full, you as the judgment creditor have the duty to see that the writ of Fi Fa is cancelled on the appropriate General Execution Docket(s). There is an additional fee for this service and that matter is handled through the Clerk of Superior Court in the respective counties wherein the writ of Fi Fa is filed.
B. GARNISHMENTS:
A garnishment is a separate legal action that is filed against the garnishee. The garnishee is a person or business entity that either owes funds to the judgment debtor, or is holding funds on behalf of the judgment debtor. A garnishment could be used against a bank, credit union, employer, general contractor, etc. A garnishment is filed in the county where the garnishee is located. Cost for filing is $59.50.00 and plus a $25.00 for each Sheriff's service.
C. CONTINUING GARNISHMENT:
A continuing garnishment is used when the judgment debtor is a wage earner. It last for a period of 180 days and the appropriate sums will be deducted from the judgment debtor's wages on a 30-day recurring basis until the entire judgment amount is collected, or until the expiration of 180 days from the date of service, whichever event shall first occur. A continuing garnishment is filed in the county where the garnishee is located. Cost for filing is $59.50.00 and plus a $25.00 for each Sheriff's service.
D. POST-JUDGMENT INTERROGATORIES:
The purpose of the Post-Judgment Interrogatories is to ascertain what the assets, if any, the judgment debtor has to satisfy this judgment debt. it can be as much as a five step process. Those steps are as follows:
1) Plaintiff files his affidavit and the Interrogatories. They are available in the Clerk's Office of the Magistrate Court. The cost varies according to what time they are filed. If filed within 30 days of the date of judgment, they are filed under the original case number and the cost is $10.00. The Clerk's office will serve the judgment debtor by certified mail with return receipt requested. If filed after 30 days of the judgment date, the interrogatories are assigned a new case number and the Cost for filing is $59.50.00 and plus a $25.00 for each Sheriff's service.
2) If the Interrogatories are not answered within 30 days, then the judgment creditor must file an Affidavit and Motion to Require Answers to the Interrogatories and the appropriate notice. This is served upon the judgment debtor by certified mail, return receipt requested.
3) If the judgment debtor fails to appear at the hearing, the court may, in appropriate circumstances, issue an Order requiring the judgment debtor to answer the Interrogatories within 10 days. This is served upon the judgment debtor by certified mail, return receipt requested.
4) If there is no response to the Court Order requiring answers to the Interrogatories, then the judgment creditor must file an Affidavit and Motion to Invoke Sanction of Contempt for Defendant's Failure to Answer Interrogatories, plus the appropriate notice. This must be personally served upon the Defendant by the sheriff. Also, a copy of the previous order is served upon the judgment debtor, as well.
5) If the Defendant fails to appear at the hearing, or in the event he does appear and does not have a bona fide reason for not answering the Interrogatories, then the Court may enter an Order for Incarceration. Judgment debtor is then arrested by the sheriff and held in the Lumpkin County Jail until the Interrogatories are answered and approved by the Magistrate.
Please note that this is only an overview of the various procedures available to you. You may wish to consult legal counsel if you have difficulties in collecting the judgment lawfully due you. Our office can assist you in filling out the forms hereinabove set forth.
DO I HAVE TO DO ANYTHING AFTER MY JUDGMENT IS PAID?
If you are awarded a money judgment and the other side satisfies or pays that judgment, you must file a Satisfaction of Judgment with the Court. A judgment will appear on and damage a person's credit report until it is satisfied. You could be liable for damages to that person if you allow the judgment to continue to appear after it has been paid.
WHAT ARE THE ALTERNATIVES TO GOING TO TRIAL?
The parties to a lawsuit are free to discuss settlement of their case at any time. When you come to court for trial, the Judge will give you time to discuss your case with the other party before the case is heard. If you are able to settle your case, the settlement may take several forms.
There may be an agreement by the parties to take certain actions and upon the completion of those actions, each party will file a dismissal of their claims against the other. If this is the way you want to settle your case, you may ask the Court to continue the case to another date to give both parties time to complete their agreement. If the matter is resolved before that date, both parties should file dismissals. If the matter is not resolved, both parties should appear for trial.
There may be an agreement for the payment of money by one party to the other at some time in the future, either by a single payment or by installments. If that is how you settle your case, you may ask the Court to enter a Consent Order, setting forth the terms of the agreement. If either party fails to comply with the provisions of the Consent Order, the other party may request that a judgment be entered for any remaining sums which have not been paid as agreed.
There may be an agreement to settle the case immediately, with no further action to be taken by either party. If that is how you settle your case, both parties should file a dismissal of their respective claims.
WHAT IS THE DIFFERENCE BETWEEN A DISMISSAL WITH PREJUDICE AND WITHOUT PREJUDICE?
A Dismissal with Prejudice means that the claim may never be asserted against other party again. A Dismissal without Prejudice means that the claim may be reasserted against the other party in the future.
CAN I APPEAL MY CASE IF I LOSE?
Yes, to appeal your case you must file a Notice of Appeal with the Clerk of Magistrate Court within seven (7) days of the entry of judgment by the Court. In order to appeal, the Tenant is required to pay any past due rent awarded into the registry of the court, and the Tenant will have to pay all rent that becomes due during the appeal into the registry of the court. You must send a copy of the appeal to the other party. If your case is appealed, it will be transferred to the Superior Court of Lumpkin County. The case will be assigned a new case number and will be scheduled for a jury trial. You will receive notice from the State Court as to when your trial will be held.
I DID NOT RECEIVE NOTICE OF MY COURT DATE AND THE CASE WAS DECIDED AGAINST ME. WHAT CAN I DO?
If you believe that you were not given proper notice of your court date, you can ask to have the judgment set aside. You must do so by filing a Motion to Set Aside Judgment setting forth the reason why the judgment should be set aside. The Court will schedule a hearing on your motion. Both parties should appear and be ready for trial. If the motion is granted, the Court will try your case immediately.
THE COURT HAS ISSUED THE WRIT OF POSSESSION, AND THE TENANT HAS NOT VACATED THE PREMISES, HOW DO I GET POSSESSION OF MY PROPERTY?
When the writ of possession has issued, the landlord must contact the sheriff's department to schedule an appointment for an eviction with that office and to find out what will be required by the landlord to evict the tenant. Generally, the landlord should be aware that the sheriff's office is not responsible for the physical removal of the items from the rental property. Instead, the sheriff's office is responsible to make sure that there is not a breach of the peace while the eviction occurs. It is the landlord's responsibility to provide the requisite labor and resources for the timely removal of the items from the premises.
WHAT ABOUT MY SECURITY DEPOSIT?
If the landlord is a corporation or limited partnership, or a person whose family owns 11 or more rental units, or a person that employs a paid property manager, then the landlord may post and maintain an effective surety bond with the clerk of the superior court in the county in which the rental unit is located, or the landlord shall deposit all security deposits in an escrow account established solely for that purpose and notify the tenant, in writing, of the location and account number of the escrow account.
Before receiving any security deposit for the tenant, the landlord must deliver a list to the tenant of existing damage to the premises. The tenant has a right to retain this list. The tenant has a right to inspect the premises to determine the accuracy of the list before taking occupancy.
Upon the signing of the lease by both parties, it is conclusive evidence of the accuracy of the list but is not conclusive as to latent defects. If the tenant has any objection to the list the objections must be in writing and signed by the tenant.
Within three business days after the termination of occupancy by the tenant, the landlord or his/her agent shall inspect the premises and prepare a list of any existing damages. The list shall contain the estimated dollar value of such damage, which is applied against the security deposit. If the tenant vacates the premises without notice to the landlord, the landlord may make the final inspection within a reasonable time.
If the landlord is a person whose family owns less than 11 rental units and has not hired a property manager to manage the property, then the landlord should return the security deposit in full within one month after termination of tenant's occupancy. In the event the landlord retains any portion of the security deposit for cause, the landlord must deliver to the tenant a list specifying the exact reasons for the withholding and as well as any remainder of the security deposit. The list and remainder of the security deposit may be delivered by mail to the tenant's last known address. The landlord may hold the security deposit for past due rent without notice to the tenant.