DO file an eviction with the courts,
DON’T do anything outside of the court process!
(And don’t stop the eviction proceeding just because the tenant is gone.)
WHY YOU MUST FILE AN EVICTION PROCEEDING IN COURT
I often hear from landlords who want to “immediately” remove a tenant from their property for non-payment of rent. Often the landlord has been exceedingly patient, having received no rent for weeks, even months. Sometimes the landlord was patient because the tenant lost a job, or a family member passed away. Other times the landlord was patient because the tenant had medical bills that were unforeseen. In every case, the landlord feels hurt, angry, and taken advantage of. The only reward the landlord receives for their kindness is having to pay the mortgage on the rental property without receiving any rent!
While I can sympathize with the anger and frustration in this situation (I own rental property too) I must warn you, if you don’t follow the law regarding evictions, not only will you not collect your past due rent, but you might also be writing a check to the tenant and/or a good lawyer to get you out of trouble! The following are only a few examples of unlawful evictions according to the Courts in Georgia. 1) Removing the tenant’s personal property and placing it upon the street, unless this is done under the supervision of the sheriff, acting under a court ordered writ. 2) Changing the locks to prevent the tenant from having access to the premises.
While the two examples above may be very obvious, there are other things a landlord can do which, if done, would violate the law. One landlord asked me if it was alright to enter upon the premises to remove all the appliances in the house. Another landlord asked me if it was okay to remove the front door from the house. Yet another landlord asked me if it was okay to have the utilities disconnected because the tenant had failed to pay for the utilities that were in the landlord’s name. My advice is NO, NO, and NO! If you try any of these actions you could very well end up, not only having to keep the tenant instead of evicting them, but also paying punitive damages for your intentional interference with the tenants right of possession outside of the court process. (See especially Albert Properties, Inc. v. Watkins, 143 Ga.App. 184 (1977).
Landlords who have violated the rules have attempted to “explain away” their actions by stating that the tenant “violated the rules first” by not paying rent, or some other breach of the lease. While it may make you feel good, blaming the tenant for causing your unlawful actions will not work.
“It is fundamental that the landlord cannot evict as and how it pleases and in the process damage or lose the tenant's personal property and then obviate its negligence by proving the tenant had violated the lease terms (the grounds for eviction), for then there would be no such thing as a cause of action for unlawful eviction.” Kerlin v. Lane Co., 165 Ga.App. 622 (1983).
The courts have even held that a landlord that authorizes or acts in a way which intimidates the tenants into “voluntarily” leaving, even though the landlord did nothing to physically interfere with the tenant’s possession, are subject to paying damages to the tenant. (See Sinclair Refining Co. v. Stovall, 41 Ga.App. 214 (1930).)
WHY YOU MUST MOVE FORWARD WITH EVICTION, EVEN IF THE TENANT LEAVES
Many landlords ask me if it is okay to stop the proceeding once the tenant has “abandoned” the property. There are several reasons why I advise landlords to move forward. First, unless you move forward you will not be able to obtain a money judgment against the tenant. Second, and perhaps more importantly (especially if you believe it will be impossible to collect a money judgment against the tenant), there is a possibility that the tenant could come back and claim you unlawfully evicted them!
Suppose you file the paperwork with the Court. The sheriff goes out to the property and serves the tenants with the proper paperwork. The tenants do not respond to the court paperwork but instead, apparently move out of the property. Assuming that they did not return the keys, and, they do not remove all of their personal property from the premises, you CANNOT re-enter the premises, even if they only leave behind a few old clothes and an (apparently) broken television. If you were to remove these items from the premises without a writ (court order), and without properly executing that writ under the supervision of the sheriff’s department… you’ve just accomplished an unlawful eviction! Of course I understand that, 9 times out of 10, the tenant may not ever come back, but if they do you’ll be very sorry.
Another reason to move forward, assuming the tenant was either served personally, or that the tenant responded to the papers by filing a response with the court, is so that you can obtain a money judgment. The courts will very likely award you all of the back due rent you claim, plus court costs in every case. Courts are a little more selective about awarding late fees and/or attorney’s fees. Most courts will allow late fees if they are simple to understand (i.e. $100 after the 5th of the month), AND they are reasonable (i.e. less than or equal to 10% of the monthly rent). Courts will generally also award attorney’s fees if the lease is properly written, and you hired an attorney. Feel free to call my office if you have any questions. We’ll be happy to discuss your specific situation without obligation, free of charge.
Trey Phillips is an attorney in Lawrenceville, Georgia whose practice of law includes extensive experience in Landlord and Tenant issues. Trey created the website http://www.georgiaevictionattorney.com/, to provide Landlords with information regarding Landlord and Tenant law in Georgia. Trey represents Landlords all over the country that own land in Georgia, and may be reached by email at info@GeorgiaEvictionAttorney.com or by calling his office tollfree at 1-888-500-EVICT (3842).
Trey Phillips focuses his practice in litigation, landlord and tenant law, creditors’ and debtors’ rights, business law, homeowners’ association law, real estate transactions, and criminal law. He assists entrepreneurs in the creation of business entities such as Corporations, Limited Liability Companies, or Partnerships to facilitate their particular needs regarding, taxation, financing and limited personal liability. He is a member of the State Bar of Georgia (Bankruptcy, Creditor's Rights, Criminal, Family, Fiduciary, General Practice and Trial Law, and Military/Veterans Law Sections), the Gwinnett County Bar Association (Younger Lawyer's Section Chair), and the American Bar Association. Trey is an active member of the Gwinnett County Bar Association, currently serving as the section leader of the Younger Lawyer's Section. Trey also serves as a member of the Gwinnett County Indigent defense and is often appointed by the Gwinnett County Courts in criminal cases when the Defendant cannot afford to retain an attorney.
Trey received his Juris Doctor degree from the University Of Georgia School Of Law. Trey is currently a candidate for a Masters of Business Administration degree from Georgia State University. Prior to attending law school, Trey worked as a senior business analyst for a large public information technology corporation headquartered in metro Atlanta. Trey received his Bachelor in Business Administration degree (Finance Major) from the Roberto C. Goizueta Business School of Emory University, where he was selected as member the Roberto C. Goizueta Business School Honor Council, and served as Vice-President of the Health Care Club.
Trey was born in Baton Rouge, Louisiana. While serving eight years on active duty in the US Army (Infantry), Trey was assigned as a Field Medic to elite national contingency units including: 3rd Battalion, 75th Ranger Regiment at Ft. Benning, Georgia; 2nd Battalion, 325th Airborne Infantry Regiment, 82nd Airborne Division at Ft. Bragg, North Carolina; and the 11th Armored Cavalry Regiment in Fulda, West Germany. Trey graduated with honors from the United States Army Primary Leadership Development Course. Trey’s military decorations and awards include the Humanitarian Service Medal, the Army Commendation Medal, the Army Achievement Medal, the National Defense Service Medal, the Overseas Service Ribbon, the Good Conduct Medal, the Parachutist Badge, and the Expert Field Medical Badge. Trey received the Humanitarian Service Medal for his participation in medical rescue operations in southern Florida following Hurricane Andrew.
Trey is multi-lingual, possessing basic skills speaking, reading and writing German and Russian. Trey is also a licensed Private Pilot.
