When is it to early to evict a tenant for not paying rent? Print E-mail
Written by Kerry S. Doolittle   
Friday, 27 January 2012

Is it too early to begin to evict a tenant for not paying the rent even though the month is not over yet? If not, what do I need to file in court to start the process?

A question faced by landlords on a regular basis.  For this article, I will assume that the rent is due on the first day of the month.  If your rent is due on a different day, just move the timeline accordingly.


 

Technically, once the rent is past due, you have a right to pursue an eviction. However, as is often the case in legal matters, the exceptions can sometimes defeat the rule.  You need to know the traps in order to avoid wasting time and money.

A lease typically provides a late fee if the rent is not paid within five or ten days of the due date.  This late fee is often viewed by the tenant as a grace period, meaning the tenant believes the rent is not actually due until the fifth or tenth day.  This view is incorrect and it is not merely a question of semantics.  The rent is due and payable on the first.  On the second day unpaid rent is late and the tenant is in default.  You can begin the dispossessory process on the second day.

But, be wary if you and this particular tenant have a long practice of accepting rent very late.  That pattern of conduct can create an implied grace period.  The tenant will argue that the landlord always accepted rent on the twentieth day of the month, and that is when they planned to pay.  A judge could rule that the landlord is bound by this pattern of conduct and the tenant is not in default until the twentieth. 

The solution to this problem is to give the tenant a written notice that rent is due on the first and you expect the tenant to strictly comply with the lease terms.  That puts the tenant on notice that he can no longer rely on past practices.  You then have to be very careful to not lapse back into the old habit.  A good business practice whenever you accept a late payment of rent is to send the tenant this written reminder demanding strict compliance.  An email will suffice. 

The first step toward eviction is to make a formal written demand for possession.  It can be as simple as "Because you failed to pay the rent due on January 1, 2012, I terminate your lease.  Please move out and surrender possession immediately."  This can be hand delivered or tacked on the door and then a copy mailed to the tenant (do both).  Do not rely on email for this step.

The next step, which can be done the following day, is to file a Dispossessory Action or Landlord's Affidavit with the local Magistrate Court.  Most courts provide the form, and in some you can even file on line from your computer.  The form is very simple and allows you to fill in the amount of rent, late fees and other charges past due. 

Be sure to itemize exactly what the tenants owes, for example $445 rent for December, $445 rent for January, $25 late fee for December, $25 late fee for January, $35 bad check fee, etc.  Make sure the math adds up correctly.  This will make your time in court a lot easier by allowing the judge to verify your numbers quickly. 

I always prefer to make the demand and wait one day to file because the law requires that you first demand possession and the tenant has not surrendered before you file.  If you file without making a demand, your case can be dismissed on this technicality, forcing you to start over.

Once you file the dispossessory action, the Sheriff's office will serve the tenant.  If the tenant is found at home, the service will be “personal,” which means you can get a money judgment for what he owes as well as a writ of possession.  Otherwise the notice is "tack and mail", which means they post a copy on the door, and mail a copy to the tenant.  With this type of service you cannot obtain a money judgment, but you can still get the writ of possession.

The tenant has seven days to answer.  If the tenant fails to answer, you are entitled to a default writ of possession which can issue immediately.  Be sure to check with the clerk of court to find out when the summons was served and whether or not an answer was filed.  If no answer was filed, then make a written request for a default judgment.

If the tenant does answer, then the court will set a hearing and notify both sides of the date and time.  Go to the hearing prepared to testify how much is owed by the tenant.  Bring the demand for possession letter, lease agreement, and a payment history to document your claims.  Also, if the tenant was served by tack and mail, by filing an answer the tenant acknowledges service and the court’s jurisdiction.  That means you can get a money judgment.

In Georgia, a tenant may tender all money owed to the landlord in order to avoid dispossessory for non-payment of rent and the court will dismiss the proceeding.  Few tenants know about this law so they seldom come prepared to pay everything they owe in full.  Also, this can only be done once in a twelve month period.  The second time, the landlord can refuse the tender and insist on eviction.

Once in court, before the hearing, the judge will ask the parties to step outside and talk with each other to see if the matter can be resolved by agreement.  If you and the tenant come to an agreement, the court will write it up as a consent order.  If you do not reach an agreement, then the court will hear the case and issue its judgment.  This presents an opportunity for the landlord.

By state law, once the judge rules that you as landlord are entitled to possession, a writ of possession will issue in seven days, no more no less.  The judge is bound by the statute and cannot change the time.  The parties, however, are able to negotiate for more or less time if they reach an agreement.  This gives some leverage to the landlord.  You can negotiate a voluntary move out and/or better payment terms on the back rent, offering to allow the tenant to stay 10 to 14 days if they agree to pay on an agreed upon schedule or to move on their own (saving you the cost of a formal eviction).

Once the writ of possession issues, you will need to contact the sheriff's office to arrange a time and day to formally evict the tenant.  A deputy will meet you there to maintain the peace, but you will need to provide the labor to move the tenant's belongings to the curb.  Yes, you do actually put the tenant's property next to the curb.  Ask the deputy how long to wait before treating anything left on the curb as abandoned.  Each county has its own customs, usually one to three days.  After that amount of time passes, you can clean up and throw away anything left behind.

Keep in mind this is how to terminate the lease and recover possession of the property when the tenant fails to pay the rent.  In this situation it does not matter whether your lease is month to month or long term.  If you want to evict a problem tenant who does pay the rent, you will need to look to the terms of your lease to determine how much notice to give.  In a month to month, the landlord must give sixty days notice to terminate for any or no reason, unless the lease is written and specifies a shorter notice, usually thirty days.  In a long term lease, you may only be able to terminate early if the tenant breaches the lease in some other way.

One more key tip.  If getting the tenant out is the primary objective, and collecting the unpaid rent secondary, do not accept any payments (especially partial payments) from the tenant after you file the dispossessory action.  This can be grounds for dismissal of the case, wasting your time and money.  If the tenant offers a payment, tell him he has to pay the rent to the Clerk of the Magistrate Court.  At the hearing, you ask for that money to be applied against what the tenant owes you, so you still get the money in the end, but you preserve your right to pursue eviction.

Hope this helps.

Kerry Doolittle

 
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