If you have a bad tenant, I know you want them out, but please keep it legal. All Georgia landlords have to be patient enough to go through all the legal processes and the time that it takes for those processes to work. Do not be tempted to take shortcuts to facilitate the process, or you could end up breaking the law.

So, what am I saying? In Georgia, self-help evictions will get you in trouble. What do I mean? I mean you cannot threaten folks in any way, obviously. Moreover, you cannot flush them out by turning off the water, turning off the power, or turning your back to ignore a broken heating system. Even when the tenant stops paying, until due process is completed, you are required to keep everything running and repaired just as if the rent still came in on time. Under Georgia law, turning off any utility can get you fined up to $500.  And no, you cannot keep the tenant out of the house, either. Don’t go changing locks or barring windows. And no barring the doors either. Unfortunately, during the eviction process, right up until the sheriff goes to oversee the removal, you, dear landlord, have to treat your squatter like a renter. Even during a pandemic. No matter how long the court system is holding the process up for everyone – even for those of you who own your house or live in the same house with the tenant, do not use harassing tactics, remove appliances, fail to repair, change locks…none of that.

It’s frustrating, but protect yourself by being a model landlord even when the tenant has become a deadbeat. The law works for both sides, so know how to keep yourself out of trouble, even though you are at the end of your rope.

For more information check out  OCGA § 44-7-14.1
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If you have allowed your tenant to take possession of your rental property without collecting the security deposit before the move in, you are probably not getting that security deposit. You may have put the security deposit in the lease, asked for the money verbally, anything; but the fact is unless you actually collected the security deposit before the tenant shut the front door, you let someone move in paying less than you intended. Maybe the tenant promised to pay in increments, said they would give the money to you a week late, made you think they will give you something for that down the road. If the tenant actually does that after moving in, you are extremely lucky.
Furthermore, the judge will not give you the security deposit money as part of a dispossessory judgment because the security deposit is not rent. The judge expects that you, as a property owner, behaved as a business owner when you began the business of renting property; moreover, the judge expects that you, as a business owner, collected the money that you required of the tenant (that is - made that tenant fulfill the obligations in your lease / agreement) before the tenant took possession of your house.
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Security deposit is not rent. The security deposit monies for rental properties are to repair damages beyond normal wear and tear or to cover rent if the tenant defaults or abandons the property. If you did not collect security deposit in the beginning, you may never get it.

Dispossession = stripping someone of possession of your property – not debt collection. Let that sink in. Dispossessory proceedings provide a judgment that allows both tenant removal and a money judgement against that tenant. Great. But removing the tenant should be the primary focus when deciding to begin the dispossessory process. I know that most landlords want to evict a tenant because the tenant has not paid rent. Of course, lease violations or new plans for the property bring about dispossessory actions, too, but most evictions are about money; renting out property is business, not charity. Nevertheless, getting the investment property back so that it can make money with a paying tenant should be the primary focus during a dispossessory. Collecting the debt from a tenant who has not paid you already – well, that should be a secondary focus after the dispossessory.

Every day I talk to property owners and landlords who want to discuss collection while also trying to talk to me about getting nonpaying tenants out of a rental property. I do everything I can to collect the unpaid rent before filing the dispossessory warrant, but when a tenant stops paying, the likelihood of collecting unpaid rent is very, very low. Moreover, when I initiate the dispossessory proceeding, I file to both dispossess and get a money judgment for unpaid rent and court costs, and most of the time, my clients get both items on the judgment. But I have many clients who ruin their own dispossessory process by taking money after I have filed the dispossessory warrant with the court. Unless that money is returned, the case is over and the fees for the process are lost. That’s it. Maybe collecting that money satisfies the client, but maybe accepting that money, sometimes much less than the tenant owes, keeps the client from proceeding with dispossessing the tenant, and the tenant knows that. The tenant is conning the owner by making direct deposits that are nowhere near the unpaid rent and late fees (and sometimes utilities.) If an owner accepts one penny during the same calendar month that I have filed the case, the judge will tell that owner the case is over because that was rent for the month – whether it was old debt or current rent or – like I said, one penny deposited by a con artist.

Tenants con landlords all the time. Partial payments are part of the con. Promising to pay here and there to catch up is also a con.

Landlords and owners con themselves all the time. Accepting partial payments stops the process. Dwelling on collecting rather than dispossessing wastes time and can cost thousands in lost rent.

After we have concluded the actual dispossessory process through the courts and have removed the tenants, if there is adequate information to find the evicted tenant, then it’s time to garnish that tenant; then maybe there will be collection. But, getting to collection after beginning the dispossessory is months away, and the debt needs to be large enough to warrant what it costs in both time and money to collect it. The fee to file a garnishment and the collection bounty runs about 40% of the debt total.

Dispossessory is not debt collection; they are entirely separate processes. Successful dispossessory does, however, set the course to collect debt.  Sadly, debt collection not performed before dispossessory filing must come after the entire dispossessory process ends. Period. You cannot collect one penny of money during the same calendar month that I file a dispossessory proceeding; it does not matter what day the rent is due. You cannot collect on penny of money during the dispossessory process until after the tenant as been physically removed from the home by the marshal, or the case is over and must be refiled.
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Dispossessory first. Debt collection second. Separate processes.

I know, you finally to want dispossess your tenant this month because right now, you have had enough foolishness. You do not want to hear about more problems, more reasons why there is only part of the rent, none of the rent, and how that is not really their dog/cat/chicken(s) or subtenant. Yeah, I know. However, stop right now and think back to how many times you have already allowed that tenant to slide. Think about each month you have allowed infractions, shortfalls in the rent, unpaid utilities, and any other breaches in your lease. Now, think about this; your lease is a contract. Your lease does in fact, fall under Landlord/Tenant law but is also covered by Contract law. If you are habitually letting your tenant slide about rent and late fees and then accepting the money late over and over, you are altering your contract, maybe even creating a breach in that contract. Yep. You can break your own contract by habitually not adhering to it, and that means that you may no longer be able to enforce your lease, and by that I mean – exercise the right dispossess tenants because they aren’t following – you guessed it – the contract.

Here is what happened.
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Last month, despite having a contract which states clearly that my owners can refuse late rent and evict, and despite the tenant agreeing to that in the contract, we could not evict this tenant. Despite Landlord/Tenant law that clearly states that an owner is only required to accept late rent once in any calendar year, this judge decided that the owners’ behavior of regularly accepting late rent created a breach of their own contract, and they could no longer enforce this contract and dispossess him for continually being late to pay. That’s right. Owner actions negated their contract, and the tenant walked out of court, not only remaining a tenant, but a tenant whom the owners had to reimburse for his court costs. The judge told all of us that the lease is henceforth going to be strictly enforced. Which means we must demand payment immediately when the tenant does not pay, file the dispossessory and go to court to collect and/or evict him.
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Now, as a property manager, I am advising all my owners that we must notify all tenants that leases will be strictly enforced, no exceptions. We must give everyone notice that we will now follow the lease and then – do it.  It is a bit sad when I consider that means normally good tenants cannot have an occasional slip-up without getting a demand letter and a maybe a court date because my owner can no longer be merciful in emergencies. But now, we have no choice if we want to be able to evict when this person cannot come through with the rent or with remedies immediately. Charity is no longer an option. Patience is no longer an option.  To be flexible about rent could make the lease unenforceable.
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Lease vs Actions. Actions may trump the contract and subvert Landlord/Tenant law; it depends on the judge; it depends on the county; it depends – on many things. But learn from my experience in Cobb County. Enforce your lease; make your actions consistent if you want to evict without a problem.

If your rental property is in foreclosure, it can complicate your dispossessory.  When you stop paying your mortgage, the foreclosure notices likely start showing up at the rental property address. Your situation becomes very clear to your tenants when they get all those notices in the mailbox.
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Lately, I had a case where the tenants presented evidence to the judge about foreclosure on the property from which they were currently being dispossessed; I had no idea that this property was in that state of affairs because the owner did not tell me. The foreclosure, and moreover my not knowing about the foreclosure, caused major problems in court. The tenants got crazy time and rent concessions because the owner could only sue for the unpaid rent before the foreclosure happened. My team never had a chance to develop a strategy that would have benefited the landlord in this situation, and we had to make a consent agreement with the tenant. If I had known to research and get a warranty deed, it turns out, we could have gotten a judgment for more money for the owner; instead, I had to react right there, get what I could in consent, and walk away. We could not risk going to trial because the judge may have thrown out the entire case.
 
Don’t think you can hide foreclosure from a tenant. If you think tenants won’t open your mail, you are completely wrong.  In fact, some mortgage companies will send mail to the house addressed to – CURRENT RESIDENT.  It might as well say, Hear ye, hear ye; we’re telling your landlord’s business. Moreover, the tenant may then show up to court and tell the judge that you’re not paying, that you do not own this place anymore. Some judges will scold the landlord, dismiss the case, and send everyone away.  If I know ahead of time that this stuff is going on, I can go get a warranty deed that shows you still own the house or at least owned the house up to a certain point and take that proof to court.  Otherwise, as an owner/landlord, you may have a judge that lets the tenant have tons of time to leave and tons of concessions when it comes to paying you. You may get nothing if foreclosure is mishandled.
 
I know it’s bad. The tenant stops paying you, and then you cannot pay the mortgage.  It can become a vicious cycle.  But you must disclose this stuff to whoever you are working with at the time. And if you are doing a dispossessory yourself, you better have proof that you still have a warranty deed for the property or had a warranty deed up to the date of the dispossessory filing.

 
    When you bring in a roommate, you are subletting space to someone; you are bringing in a subtenant. By definition, subletting occurs when a tenant rents to someone who does not have a direct relationship with the landlord.  Well, to understand the entire picture here, ask yourself, am I a landlord.  In Georgia, a landlord is the person who owns the property or the person who is the property manager with the authority to lease and act on behalf of the property owner. If you are not the landlord, then you are a tenant. If you are a tenant who has sublet a space to a friend or anyone else without the permission (in writing) from your landlord, then you have a roommate who is trespassing against your landlord because your landlord has not given that person permission to be there. You have no authority, in this case, to terminate the roommate’s tenancy.  That situation can be truly awful.

     Bottom line, if you want to evict your roommate, your actual landlord will have to do it.  The problem with having your landlord evict your roommate could be that you get evicted too for subletting without permission. 
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     If you own the property or are the designated property manager for that property, you can terminate a subtenant with 60-day notice. If the subtenant, who could be your kids, friend, family members, or anyone, does not leave at the end of that notice, dispossess them.  Figure out where you fall in this scheme before you decide you terminate your relationship with your roommate.  Keep it legal – even if that means going to your landlord to tell him or her you let someone into your house or apartment. Your landlord can get the roommate out.
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O.C.G.A. 44-7-1 

I get emails and calls from clients who are completely freaked out about all sorts of things. I constantly remind myself that property owners and landlords do not deal with this all the time. Most people do not have my worldview. Many clients get really tired at the end of the process and say, “Your timeline says 6-8 weeks, and it has been much longer! My (friend, property manager, tenant, spouse) says they know a guy who got his tenant out in a few weeks.” Many landlords do not understand that each case I have has its own individual set of circumstances, and many times our cases end in a matter of days. A very few of our cases, because of extenuating circumstances, have taken six months to resolve because of appeals that no one could prevent. Well, I do not cut corners, and I do follow the letter and spirit of the law. Following Georgia law puts the process on a variable timetable. That being said, let me share my thoughts on the number one issue my clients get upset about – the eviction timeline.

If things go well, the timeline I provide really is the average time to get a judgment and to include the average seven day move out period that the evicted tenant gets from the judge. If things go well. Now let me tell you what can happen that makes the process not go well – that is stretch the timeline beyond average:

• ​The sheriff’s civil division has a backlog and cannot serve the tenant in the normal 7-10 days after we file the dispossessory.
• The information we receive for the dispossessory is incomplete or simply inaccurate. We do all we can to confirm the accuracy of the tenant address, name, and amounts owned, but ultimately, the property owner is responsible for providing this information. If anything is wrong with that information, particularly address information, the dispossessory will be returned to the court once the sheriff’s delivery fails and then it is held up until corrections are made. This issue can cause weeks of delay.
• ·The tenant turns out to be a professional con. Tenants who fail to pay, frequently con landlords over and over. These tenants get around a background check; lie about intending to pay for a long while, and then start using the legal system to remain in the home despite the dispossessory action. There is an actual company online that advertises that they can stop or hold up evictions for sixty days. Really. Moreover, tenants regularly do these types of things:

1. The tenant sneaks money into a landlord’s bank account, stopping the legal process. (Guys, if you take the money, the process is over.) The tenant cons the landlord into taking a partial payment, stopping the legal process. (Guys, if you take a partial payment, the process is over.)
2. The tenant claims they never got the court notice and makes the court reschedule (I forwarded my mail to where I was going to move after I leave, and I did not get the court summons. – Yes, this really happens.)
3. The tenant appeals or claims poverty. (No, they don’t have to prove anything to hold things up while the court reviews the tenant’s claims.)
4. The tenant tricks the landlord into verbal agreements after we have filed. (Guys, you can stop the dispossessory just by talking to the tenant after we file.)

• The court calendar can be full and delay the case by an entire week or longer.
• The client can hesitate on purchasing a Writ of Possession or try to circumvent getting one to speed up the process. Doing this can get the landlord into serious trouble and drags the process out considerably.
• The sheriff’s civil division can experience a backlog of physical set outs that can delay a set out by three or four weeks.
• Physical set outs will be cancelled by the sheriff if it is raining.
• Holidays. Holidays are fantastic unless you are trying to evict someone during or near those holidays. Expect delays.

These bullet points do not constitute a complete list of road blocks. However, this small list shows areas in the process that hold potential for delay: Government agencies timeframes, landlord mistakes, and tenants’ ability to use the legal process to their benefit seem to present the major areas that hold the process back. Occasionally, we experience the sad trifecta where all three areas hit in one case.
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Again, I do not cut corners anywhere in the dispossessory process. I inform my clients with emails and video instruction about each phase and hope that this information keeps the process clearly outlined. Ultimately, though, everyone in the eviction process is at the mercy of the government. Read that last sentence again. I, the agent, am subject to the law. Our lawyers are subject to the law. Our landlords are subject to the law. The tenants are subject to the law. This is a government process. This is a process that follows rules of law. Please investigate landlord – tenant law to help set your own expectations of the process. We even have a link to that law on our website.
Setting expectations to all the possibilities can be downright discouraging. The law does not pick sides, and sometimes it feels like it is taking forever and the tenant is getting all the breaks. In the end, the law will land on the side of the landlord, if that landlord follows the process. And the process is not simple nor is it swift, but it is sure. Stay the course. And as always, keep it legal.