Question No. 1. I have moved out of my apartment before the lease is over.

What expenses is the landlord entitled to for my breach of the lease?

Answer: If there was a written lease between the parties, the landlord is
entitled to be compensated on the following basis. If the written lease does
not specify terms upon which the tenant may terminate the lease before the
term is up, the landlord is entitled to rent up until the date the Court issues a
writ of possession to the landlord or the date the landlord assumes
possession of the premises after the tenant has abandoned. You should be
aware that if you abandon the premises the landlord does have the right to
leave the property alone and let rent accrue against the tenant until the end
of the lease. The landlord than can go into court and seek damages for
unpaid rent for the term of lease. If there is no written lease between the
parties a landlord must give 60 days notice to the tenant to terminate the
lease and the tenant must give 30 days notice to the landlord in order to
terminate the lease. If the tenant vacates without notice under a verbal lease
a landlord can seek rent for the 30 days the landlord should have been given
notice for. Many big commercial apartment landlords have provisions written
into the residential leases regarding early termination of the lease. Unless
the terms are outrageous, the most effective way for the tenant to terminate
the lease is to follow the exact provisions as worded in the lease. It is
important to understand that if you negotiate something different with the
landlord regarding termination and it is not in writing, the terms of the written
lease agreement will apply. If you had a written lease and the lease is over in
most cases the terms for default under the written lease will still apply. Read
your old lease to see what the terms of default were and if you are
considered to be a tenant holding over.
Question No. 2: My air conditioning has not worked for a month. I have
called my landlord but he will not fix it. Should I just move out?

Answer: In Georgia the landlord has an absolute duty to maintain and

repair the premises. The landlord has a duty to make repairs to the extent
necessary to render the premises suitable for use intended by the tenant
other than defects that were clearly obvious to the tenant upon execution of
the lease agreement. If you accept an apartment with a broken window, the
landlord may not have to replace the window.This has become a big problem
because many landlords cannot afford to maintain the leased premises
because they are renting houses they could not sell and cannot afford to pay
the bills for. The landlord cannot delegate their responsibility to the tenant to
keep the premises in repair. The landlord must perform the repairs in a
reasonable time period. If the landlord is given notice of a problem typically a
Judge will not penalize them if the repairs are performed within a two to three
week time frame. You're not going to be able to drag the landlord into court
if he fails to make the repairs within a week of your complaint. If you call the
landlord and they do not respond that it is important to notify the landlord
immediately in writing about the repairs to be made. If the landlord still does
not make the repairs, a tenant in Georgia has the following options. You can
notify the landlord in writing that you are making the repairs and will present
the landlord with a bill for the repairs. If the landlord refuses to pay the bill
then you are allowed to deduct the repair bill from the rent and submit the
bill along with your reduced rent check to the landlord. As a tenant you can
continue to occupy the premises without the repairs being made, and file a
lawsuit against the landlord in Magistrate court for their failure to perform the
necessary repairs. It is very important to understand that the duty of the
tenant to pay rent and duty of the landlord to repair the premises are two
separate contractual duties. If you refuse to pay the rent because the
landlord did not make the repairs, the landlord can still evict you from the
leased premises. You will have a counterclaim against the landlord for failure
to make repairs, but you will be out on the street.
Question No. 3: I could not pay the full rent this month. The landlord
accepted half the rent from me and let me stay. Can the landlord now evict
me?

Answer: A landlord may try to evict you on the theory that he has a written
lease between the parties and by that lease he is owed so much rent each
month. In Georgia though if a landlord accepts a lesser amount of rent for the
month and does not give you notice that he demands the full amount of the
rent, a Court will find that he agreed to the lower amount of rent for the
month as the amount of monthly rent for the leased premises. If you pay the
rent in full and on time the next month, the landlord will have a very difficult
time trying to evict you.
Question No. 4: My lease is up and I have cleaned the place up and left. The
landlord refuses to return my $500.00 security deposit. How can I get my
deposit back?

Answer: This is perhaps one of the most misunderstood areas of landlord

tenant law. Because of abuses Georgia does have tough laws regarding
tenant security deposits. The first important thing to note is that none of
Georgia’s laws on security deposits apply to an individual landlord who is
renting 10 or fewer properties. If you are renting from Mrs. Jones who has
one rental house, she is not liable for damages under the provisions of
Georgia law regarding security deposits. She could be liable if she is using a
management company to rent the property and they are involved with the
rental of 10 or more units. Even though the following does not apply to the
small landlord, I advise all of my landlords to follow the procedures below so
there is no question in Court as to the condition of the leased premises. If
the Georgia statutes apply to the landlord then the following must take place.
If the landlord accepts a security deposit from you they must place it in a
separate bank account. They must notify you of the bank account where the
money has been placed. When you move into the property the landlord must
complete a move-in inspection. The landlord is required to have you sign the
move-in inspection. Any problems or defects in the property should be noted
on the inspection sheet and both parties should sign and date the inspection
when it is complete. When you move out to landlord is responsible for
performing a move out inspection with you present. The landlord must set up
a mutually agreed upon time to perform the inspection. If you fail to meet the
landlord to perform the inspection, the landlord is allowed to perform the
inspection on their own. After performing the inspection, the landlord is
required to provide the tenant within 30 days of the end of the tenants
occupation of the leased premises with the details of expenses for repairs
and cleaning the landlord has sustained. The landlord can not charge you for
expenses that are attributable to normal wear and tear to the leased
premises. The landlord cannot charge you for painting the premises if there
are a few dirt spots on the walls. The landlord is entitled to deduct the
expenses from your security deposit and return the balance to you with an
explanation of the expenses deducted. If the landlord fails to follow the
Georgia statutes they may be subject to damages in the amount of three
times the security deposit. It is also important to remember that a tenant
does not have the right to substitute his security deposit for unpaid rent that
he owes. The landlord can still keep your security deposit and go after you for
unpaid rent.
Question No. 5: I want to move out of my apartment. The landlord has
failed to keep the place repaired. A friend of mine told me that I can move
out and claim constructive eviction against the landlord. Does this mean that
I will not be liable for rent and the landlord may be subject to additional
damages?

Answer: Constructive eviction has become an often used defense by

tenants. The typical situation involves the tenant desiring to terminate the
lease on the basis of the landlord failing to keep the premises repaired.
Constructive eviction under Georgia law means that the leased premises
cannot be used at all for the purposes designated under the lease. Mere
inconvenience the tenant will not be enough. Constructive eviction can mean
the tenant has been denied access to the property by the actions of the
landlord in changing the locks while the lease is still in effect. Tenants in
recent years have tried to use mold buildup, poisonous spiders, and building
code violations as a possible constructive eviction action against the landlord
to get out of a lease. In the majority of cases these defenses fail. If you have
a mold problem or spiders, the tenant should first notify the landlord of the
repairs that need to be made to the premises. The landlord has the problem
of correcting the mold problem or exterminating the spiders. If the landlord
takes corrective action to fix the problem then you can’t claim constructive
eviction by the landlord. It is very hard for the tenant to claim building code
violations against the landlord. Again the landlord has a duty to repair, they
do not have a duty to correct building code violations that the builder of the
apartment failed to comply with. The one time a landlord will run into
problems is when they have actual constructive knowledge that a major
defect existed, such as propensity for the house to flood and they did not
inform the tenant at the time the lease was executed.
Question No. 6: Another tenant caused a fire in our apartments. My personal
property has been damaged. Is the Landlord liable for the damages to my
property?

Answer: BEFORE YOU MOVE IN SECURE RENTER’S INSURANCE ON YOUR

PERSONAL PROPERTY. Time and time again tenants call me regarding break-
ins to their leased premises or damages to their property from smoke, water,
mold, or fire. Under Georgia law as in most states the Landlord is not liable
for damages to your personal property. You cannot hold the landlord liable for
the negligence or deliberate acts of others that caused the damage. Neither
can you hold the Landlord responsible for acts of God or damages from the
simple failure of structural parts of the leased premises. Renter’s insurance is
cheap and it is worth every dime when disaster happens. The only time you
can make a claim against the Landlord is when the destruction of your
property is a result of the intentional negligence of the landlord. This
argument can be made if the sprinkler system or installed fire alarms do not
go off and damage to your property could have been averted. The landlord
can be held accountable if it was due to their negligence. If the Landlord fails
to make repairs that could have prevented the damage they may be
accountable. An example would be the landlord’s maintenance man wires the
apartment incorrectly causing a fire. The majority of these types of claims
should first be made against the Landlord’s liability insurance for the
property. Landlords will discourage you from making a claim against their
insurance policy, so be persistent. If the insurer fails to compensate the
tenant then the tenant should pursue a legal action against the Landlord.
Question No. 7: I have been served with lawsuit to evict me. Is it even worth
it to go to Court and defend myself?

Answer: If you have been personally served with a lawsuit it is important to

file an answer in Georgia with the Court within 7 days after being served. If
you just show up in Court you may still lose if you didn’t file an answer to the
landlord’s lawsuit. If you simply move out and don’t file an answer the
landlord may get a default judgment against you for whatever damages they
want. When you go to Court speak with the landlord or the landlord’s attorney
and see if you can work out a solution. In Georgia, a tenant has the right to
pay up the rent owed plus the court costs of filing the lawsuit within 7 days of
being served and the landlord’s suit is dismissed. If the landlord refuses to
accept the late rent from you in the seven days then file an answer and the
Judge can make the landlord accept the tendered rent. The tenant can only
tender rent in this fashion to a lawsuit one time a year. If you can work
something out with the landlord to peacefully bring an end to the lease and
what monies you owe, both parties need to write out a settlement agreement
or consent order and sign it. The consent order is then presented to the Judge
for signature. Never agree verbally that you will rely upon the landlord or the
attorney for the landlord to take care of the agreement without something in
writing being given to you and signed. Keep in mind that you do not have to
vacate the leased premises until the landlord has been given a writ of
possession to the apartment by the Court.
Question No.8: I came back to my apartment and found all of things on curb
by the street. It has been raining and a lot of personal items have been
ruined. Is the landlord liable to me for my damaged items?

Answer: Some tenants never get it. They figure the landlord will just leave
them alone. If you just avoid anything the landlord sends you in the mail or
by the sheriff you may be very surprised. Prior to evicting you a landlord is
required to make a demand for possession of the premises either verbally or
in writing. In Georgia a landlord may file a dispossessory or lawsuit against
the tenant and have the lawsuit served on the leased premises and not you.
The sheriff will simply tape the lawsuit to the door of your apartment. If you
don’t file an answer to the lawsuit or show up in Court, the landlord in all
likelihood will get a writ of possession for the leased premises. After seven
days the landlord can contact the local sheriff or marshal and set up an
eviction. The sheriff stands by while a moving crew puts your possessions on
the curb. After that there is no liability on the part of the landlord. Your
possessions are up for grabs by whoever drives by and the weather may
destroy your possessions.
Question No. 9: I have lost my job and cannot pay the rent. Should I file
Chapter 13 bankruptcy and stay in the apartment until I can get back on my
feet?

Answer: Under Bankruptcy law prior to October 2005, the tenant could
file bankruptcy and be given an opportunity to make up the back payments
as long as they paid the current rent on time in a chapter 13 case. Even
without doing this the tenant could end up staying rent free in the apartment
for up to two months before some type of action was taken against them in
Bankruptcy and State Court in a Chapter 7 or 13 case. This resulted in some
tenants repeatedly filing and dismissing chapter 13 cases to stay in their
apartment. In many cases even if the landlord had a judgment from the lower
state court and was in the process of evicting the tenant it was still possible
to forestall eviction. Under the new bankruptcy law the tenant must assume
or reject a lease within 60 days of filing a bankruptcy petition. The tenant
must either have the rent current to assume the lease or make adequate
assurances to the landlord by depositing additional sums of money with
either the Bankruptcy Court or the landlord that they have the ability to pay
the lease while in bankruptcy. Under the new bankruptcy law if a landlord has
already obtained a judgment against the tenant in the lower state court but
has not evicted the tenant, the tenant must deposit the current rent with the
Bankruptcy Court upon filing his bankruptcy petition. The tenant must also
overcome the presumption that the lease has been terminated with the lower
court judgment, and the lease no longer exists in the eyes of the Bankruptcy
Court to be assumed. The penalties for repeat filers of bankruptcy within a
one year period are now much stiffer. Be very careful before filing a
bankruptcy just to stop an eviction. You may still be evicted, lose your credit
rating, and be in more trouble if you have to file bankruptcy again.
Question No. 10: I signed a lease purchase agreement with the landlord. I
could not pay the rent this month and the landlord has sent me a letter
terminating the lease purchase agreement and demanding possession of the
premises. Do I lose my right to purchase the property?

Answer: Poorly written lease purchase agreements are without a doubt

the most litigated issue in landlord tenant courts. If you are going to enter
into this type of agreement with the owner/landlord you should have an
attorney review the contracts before you sign them. Invariably, the tenant is
going to lose on these poorly written contracts. Even real estate agents make
mistakes in drafting the contracts correctly. The important thing to remember
is there are two separate contracts involved in a lease purchase deal. You
have a lease agreement to rent the property and an option contract to
purchase the property. Make sure that if you breach the lease agreement you
don’t lose your right to purchase the property. The common mistakes
committed in these contracts are that the terms of the two contracts conflict
with each other as to the tenant’s performance. An example would be a lease
agreement that states if the tenant fails to pay the rent the purchase option
is terminated. An option to purchase the property must be in writing. It
cannot be a verbal contract between the parties. For an option to purchase to
be valid it must identify the specific property, it must state the time period
the option is valid for, and it must state the exact amount the property can
be purchased for. The tenant must give something of value typically money in
consideration for being given the option to purchase the property. Make sure
that you are not dealing with an owner who is financial trouble before
entering into a lease purchase agreement. Your option is not worth the paper
it is written on if the house is foreclosed on or the owner surrenders the
property in bankruptcy.

Question 11: I just got a call from a foreclosure attorney telling me I have to
get out even though I paid the landlord the rent for this month. Do I have to
leave or do I have any right to stay?

Answer: This is becoming a big problem. Desperate landlords have moved

somewhere else and cannot sell their house. So they rent the house out and
rob Peter to pay Paul to make their two mortgage payments. Your rent
payment is used to pay for something else other than the mortgage on the
property you are leasing. The mortgage company after two or three months
of not being paid starts foreclosure proceedings against the owner (landlord).
The property is sold on the courthouse steps to a new owner or the mortgage
company buys it for what they are owed. With a lease in Georgia, you do not
have a right by title or secured interest to stay in the property if the new
owner does not want you there. Your first move is to speak with the new
owner and see if they are willing to continue the lease or not. If not, then your
only recourse is to file a lawsuit against the landlord for breach of contract.
You should try to seek damages for the cost of moving and acquiring a new
place to live, for the rent you paid for the period you were told to leave, and
possibly for the differential in rent if you have to rent something more
expensive over the balance of the term of the original lease you had with
your landlord.