Saturday, December 13, 2008

Here's a clip from a recent newspaper article about evictions in a local Atlanta county:

Fulton suspends evictions for holiday season
Homeless advocates praise measure, landlords call it unfair
The Atlanta Journal-Constitution
Thursday, December 11, 2008

Nothing says Happy Holidays during hard times like the marshals knocking on your door to serve an eviction. With record numbers of tenants falling behind and homes being lost to foreclosure, it’s become an increasingly common scene.

One metro county, Fulton, has decided to do something about that, giving some residents a Christmas gift by an at-least three-week ban on evictions. Fulton County Marshal Antonio Johnson said he won’t evict anybody from Dec. 19 through Jan. 5. Commissioners meet on Wednesday and will consider whether they want to extend the ban.

The current economic crisis seems to be creating political sympathy for tenants, but where's the sympathy for the landlords? If the tenant doesn't pay their rent, how is the landlord supposed to pay the mortgage? (And the property taxes, and the upkeep, and the other bills associated with the rental property?)

This strikes me, and many others, as grossly unfair to the landlord.

The moral of the story may be, DON'T WAIT! When the tenant stops paying move immediately to begin the process because you don't know how long it might take to get them out.

Here's a link to the Atlanta Journal Consititution story.

Tuesday, September 23, 2008

Frequently Asked Questions about Evictions

Frequently Asked Questions About Evictions

1. Is it okay if I go to the rental property and/or speak with my tenant?
No, absolutely not! Our office will handle all communication with your tenant. We advise that you do NOT go to the rental property. We advise that you NOT discuss anything with the tenant. We will handle all calls from the tenant or their attorney if they have hired one.

2. If the tenant moves out voluntarily before I’ve started the eviction process, can’t I just change the locks?
No, absolutely not! Unfortunately, the law does not allow you to take such actions, and you could be liable to the tenant for damages, or unable to collect the past due rent if you illegally evict the tenant. In Johnson v. Howard, 92 Ga.App. 96 (1955), the Georgia Court of Appeals, upholding a 1933 case, decided that compensatory AND PUNITIVE damages may be awarded to a tenant who is wrongfully evicted by a landlord.

3. What is the first step for an eviction?
The first step is to send a demand letter to the tenant by certified mail and first class mail. This demand letter states which months are late and any late fees that apply.

4. What happens after the demand letter is sent?
After the demand letter is mailed, our office will then file the Dispossessory with the court of the county in which the property is located. Then a sheriff will take the dispossessory and serve it to your tenant either by personal service or by placing on the door of the property and also mailing it to the tenant.

5. What does the tenant do with the Dispossessory after it has been served to them?
The tenant now has 7 calendar days to answer to the dispossessory notice and this answer must be filed in court. If the 7th day falls on a weekend, the tenant has until 5PM on the next business day.

6. Once I file an eviction, should I just dismiss it if the tenant moves out or offers to pay?
This is a common question. Our advice is to NOT dismiss the case. If the tenant does send a payment, we will return the payment to them with a refusal of rent letter stating that the payment is rejected for incorrect amount, not including late fees or being late. Should you accept a payment at anytime, the entire eviction process will have to end and we will not be able to evict the tenant without starting the whole process over again. (Note: The tenant in a residential lease is entitled to have an eviction dismissed once in any 12 month period, if they pay all of the past due rent alleged, plus court costs, after they’ve been served with an eviction by the sheriff. Call us if you have any questions about this.)

6.1 What if the tenant moves out after we’ve filed the eviction?
If the tenant moves out we will still need to proceed with the legal process. DO NOT GO INTO THE PROPERTY. A sheriff MUST be the first one to enter the property. The landlord must stay out of the property.

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!

If the tenant moves out, the landlord often wants to “save money” but not executing the writ (having the sheriff come out with an eviction company to go through the property). Until the sheriff returns the writ to the court, and certifies that he went out that day, the tenant still has a “right to possession”. If you don’t complete the process you could be liable for an unlawful eviction if the tenant comes back later and claims you removed his property and changed the locks without having the sheriff perform the process in the lawful manner.

7. Is it 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! If you take such action, 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.

8. What happens if the tenant answers?
If the tenant answers, a hearing will be set by the court to have your case heard before a judge. At the hearing we will present all facts concerning what payments are late, how much is late and general provisions outlined in the lease such as late fees and attorney fees. It is also important to provide our office with copies of the current lease, receipts of any partial payments or other correspondence in which you as a landlord attempted to contact the tenant for rent.

9. What do I do if the tenant is trying to contact me?
If the tenant attempts to contact you, we advise that you NOT discuss anything with the tenant. Refer them to our office and we will handle all calls from the tenant or their attorney if they have hired one. Once we begin the process, we will handle everything for you.

10. What if the tenant does not answer?
If the tenant does not answer, we will obtain a Default Writ of Possession. With this document, we will contact an eviction company to have them and the sheriff remove any items left behind and also change the locks to keep the tenant from returning. Remember, even though we may have received a Writ of Possession, you still cannot enter the property. A sheriff must be the first person to enter the property, not anyone else such as the landlord.

11. How do I collect past due rent?
If the tenant does answer and we attend court, your case may result in a monetary judgment or a consent judgment which means that you and the tenant have agreed to specific terms. For example: you may agree to allow the tenant to pay certain amounts by a certain day. Your fee agreement outlines what we will do to begin the collections process. Depending on your case, this may include: 1. Filing Post Judgment Interrogatories if you receive a money judgment in court or 2. Filing a second lawsuit if we obtained a Default Writ of Possession in the first lawsuit.

Collections activities, such as garnishments, may require a new fee agreement.

12. Can I change the locks, or do the eviction myself?
Because of scheduling reasons we require that all evictions and lock changes be done through our eviction company. This will often ensure allow your eviction to be done much more quickly than if you tried to arrange the eviction yourself. Also, for scheduling reasons, the law enforcement officer will not wait for you to arrive if you’re running late or caught in traffic, so we always have the locks changed by the eviction crew. You’re welcome to change the locks later if required for reasons such as matching locks to other keys or architectural requirements.

13. Should I contact the Court, the opposing counsel, my tenants, the eviction company and/or any other third party during the eviction process?
Absolutely not. You have hired our office to represent you in your eviction matter, and our office will handle all communications and interactions with the Court, the opposing counsel, my tenants, the eviction company and/or any other third party. If anyone contacts you, please refer them to our office. We want to handle all of the communications with the Court, the opposing counsel, my tenants, the eviction company and/or any other third party in order to prevent miscommunication from occurring and so that we do not offend or irritate the Court, the opposing counsel, my tenants, the eviction company and/or any other third party by having too many different people contact them regarding the same case.