Landlord ordered to pay tenants over $14,000.00

Below is the complete opinion of a recent Georgia Court of Appeals case decided yesterday. In that case it appears that a landlord was ordered to pay her tenants $6795 in damages for property she allegedly took and/or damaged. As if that wasn't bad enough, she was also ordered to pay $7837 for the tenants' attorney's fees. I don't have the information from the original court case, but it appears from this opinion that the landlord claimed the tenants "abandoned" the premises and therefore went in and removed their belongings. The ONLY safe way to take back leased premises for non-payment of rent, even if the tenants "appear" to have abandoned or left is to file an eviction and get a court order.

At The Law Office of Trey Phillips, LLC (www.GeorgiaEvictionAttorney.com) we can save you a lot of time and headache by handling the process for you from beginning to end. Please do NOT enter a leased premises until you've obtained a court order and the court order has been executed by the county sheriff's department.

Court of Appeals of Georgia.
BEASLEYv.SMITH et al.
No. A08A2255.
Jan. 6, 2009.Dacara Shelease Brown, for Beasley.William Byrd Warlick, for Smith.JOHNSON, Presiding Judge.
*1 Jamie and Ashley Smith sued their landlord, Jeana Beasley, for conversion and damage to personal property located in their residence. Beasley answered and counterclaimed for breach of the lease agreement. Following a bench trial, the trial court found for the Smiths on all claims, awarding them $6,795 in actual damages and $7,837 in attorney fees. Beasley appeals, and we affirm. In three enumerations of error, Beasley argues that the evidence did not support the verdict. Specifically, she claims that the Smiths abandoned their personal property and the leased premises, that they failed to prove the value of the personal property, and that, given the insufficient evidence, the trial court should have granted her a new trial. Beasley, however, did not include a transcript of the bench trial in the record on appeal or obtain a statutorily acceptable substitute.FN1

FN1. See OCGA § 5-6-41(g), (i).

As we have consistently held, when an appellant fails to provide
a transcript of the evidence, “we must rely upon the presumption in favor of the regularity of all proceedings in a court of competent jurisdiction and assume that the evidence was sufficient to authorize the final judgment entered in the trial court.” FN2 Beasley's one-sided, unsupported recitation of the witness testimony does not overcome this presumption.FN3 Accordingly, we affirm. FN4

FN2. (Citations and punctuation omitted.) Atlanta Public Schools v. Diamond, 261 Ga.App. 641, 644(2) (583 S.E.2d 500) (2003).
FN3. See Keita v. K & S Trading, 292 Ga.App. 116, 117(1) (663 S.E.2d 362)
(2008).
FN4. See Diamond, supra; Keita, supra at 119(2).

Judgment affirmed.BARNES and PHIPPS, JJ., concur.

Ga.App.,2009.Beasley v. Smith--- S.E.2d ----, 2009 WL 26714 (Ga.App.)

Briefs and Other Related Documents (Back to top)• A08A2255 (Docket) (Jul. 18, 2008)

END OF DOCUMENT

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.

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!

THE TENANT MOVES OUT

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 TENANT OFFERS TO PAY

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 trey@treyphillipslaw.com. You can also call toll-free at 1-888-500-EVICT.

Eviction Do’s and Don’ts

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).