Wednesday, June 20, 2007

Once I file an eviction ... shouldn't I just dismiss it if the tenant moves out or offers to pay?

This is a common question ... most landlords are intimidated by the thought of going to court, and often look for ways to avoid it. Many landlords considering hiring me to assist them with a non-paying tenant want to know if we can save time and money by cancelling the whole eviction when the tenant either 1) voluntarily moves, or 2) voluntarily pays the past due rent. My advice? NO!


When filing an eviction because the tenant has failed to pay rent you're seeking a number of things, first you're asking the court to terminate the lease and return possession of the property back to you. Second, you ask the court to grant a judgment for all of the past due rent, as well as any rent accruing during the time the court case is pending. If you dismiss the case after the tenant voluntarily moves you take away the court's ability to grant you a judgment for the past due rent! While a judgment is not a guarantee that you will ever receive the money, not receiving a judgment virtually guarantees that you will never receive the money! The courts in metro-Atlanta, in my experience, will generally grant you all of the past due rent, late fees up to 10% of the monthly rent, and court costs without hesitation. While no one can guarantee you'll ever receive any or all of that money, getting the judgment is a neccessary first step.

Another problem is claims of unlawful, or illegal eviction. Should the tenant move out, taking most (but not all) of his belongings you might be tempted to assume he is gone for good. You're likely to enter the property, remove the few things left behind, change the locks and put up a for rent sign. Unfortunately, should the tenant later return, you would be guilty of an unlawful eviction, liable for the cost of any items you discarded, and potentially liable to the tenant for punitive damages. Unless the tenant has removed ALL of his personal property and returned the keys, you CANNOT assume he doesn't intend to return!


The second issue is what to do if the tenant offers to pay? First, you should know that Georgia law requires that you accept the rent if the tenant offers to pay all of the past due rent AND court costs within 7 days of the sheriff serving him the eviction papers. The landlord is only required, however, to do this once in any 12 month period from any one tenant. If the tenant offers to pay AFTER the answer is due or filed, you are not required to accept it, but you can if you choose to. If you choose to accept that rent I advise that you do so under the terms of a CONSENT JUDGMENT, which puts in writing that you're accepting the rent, and that the tenant agrees to pay all future rent on or before the first of each month and that any violation of this agreement entitles the landlord to seek an immediate writ without need for further court action. This will allow you to skip the lengthy eviction process, and the cost of another filing fee, should the tenant fail to pay the rent on time durint the remaining term of his tenancy.

Each case will be different and you should always consult with a qualified attorney in each case! Feel free to post questions here, or email me at You can also call toll-free at 1-888-500-EVICT.

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