Real Estate FAQs
Frequently Asked Questions about Real Estate
- What is a Dispossessory Action?
- What must occur before a landlord dispossesses a tenant?
- Must notice be given to before a dispossessory is filed?
- What is required of the tenant once served with a Dispossessory Action?
- If the tenant does comply and file an answer, can the tenant withhold rent until heard?
- Can a tenant win a Dispossessory suit against a landlord?
- What is a "Writ of Possession"?
- Is a lease required to be in writing?
- Are landlords responsible for repairs?
- Is a tenant allowed to withhold rent until repairs are completed?
- Can a landlord turn off utilities if rent is unpaid?
- If the tenancy is unlivable, is rent owed?
- Who is responsible for injuries on the premises?
- Who is responsible for maintaining County and City ordinances?
- What is wrongful foreclosure?
- What is the procedure for wrongful foreclosure?
- What are the different aspects of boundary disputes?
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Dispossession and Eviction
Q: What is a Dispossessory Action?
A Dispossessory action is simply a legal action filed in the Magistrate court of the county in which the property in question is located. The action serves to protect the landlord from liability of removing the tenant or possession before the dispossession or eviction process.
Q: What must occur before a landlord dispossesses a tenant?
A dispossessory action can only be filed through a landlord – tenant preexisting relationship. For example, if an individual purchasing a house on a “Lease to Purchase” schedule, the tenant will become the owner, and all dispossessory actions must be dismissed.
Q: Must notice be given before a dispossessory is filed?
There must be a reason to file for a Dispossessory Action:
- A tenant has failed to pay rent when due
- A tenant is holding over beyond the lease
- A tenant has clearly breached a clause in the lease
Once one of these infractions has occured, landlords in Georgia are required to give the tenant an oral or written “notice to quit” before the dispossessory action is filed. There is no specific time allotted, however the general rule in Georgia is a "three day notice to quit".
Q: What is required of the tenant once served with a Dispossessory Action?
Many tenants will leave once the action is served, however the tenant is technically required to file an answer within seven days of receiving the action.
Q: If the tenant does comply and file an answer, can the tenant withhold rent until heard?
The tenant is still required to immediately pay all past due rent. The tenant can not stay without paying, even if waiting to be heard.
Q: Can a tenant win a Dispossessory suit against a landlord?
In Georgia, tenants are allowed one dispossessory action per 12 months against them. If the tenant pays all past dues, court, court and filing fees within the seven days of notice, and it is the only Dispossessory Action filed, the case will be dismissed.
Q: What is a "Writ of Possession"?
Once the Sheriff has obtained an official writ of possession, he has the right to remove your possessions and evict you from the premises. Most often, however, the Sheriff will bring the landlord and simply serve notice that the tenants have been evicted and must vacate the premises. From that point, it is the landlord’s responsibility to physically remove possessions or change the locks on the doors.
Tenant Concerns
Q: Is a lease required to be in writing?
If a lease term is for one (1) year or longer, it must be written or it will not be legally enforced.
Q: Are landlords responsible for repairs?
Generally, landlords are responsible for major repairs, such as heat, water, or catastrophic damage (i.e. a collapsed roof). Minor repairs, especially if caused by the tenant, are often the tenants’ responsibility. Each lease, however, is different, so be sure to consult that before contacting the landlord.
Q: Is a tenant allowed to withhold rent until repairs are completed?
The tenant is required to pay rent on time and take separate legal action against the landlord if repairs are not being made.
Q: Can a landlord turn off utilities if rent is unpaid?
Rent and utilities are separate entities. A landlord is not permitted to shut off power, electric, water, or any other services in hopes of forcing a rent payment.
Q: If the tenancy is unlivable, is rent owed?
Most leases provide relief and specific examples for this, but in general, if the tenancy is destroyed to the point that it is harmful to reside in, rent is not due.
Q: Who is responsible for injuries on the premises?
Most landlords have insured themselves against this occurrence, however, most tenants do not. Most cases that come into question are serious and in common areas. For example, if a guest or tenant is injured on a defective stairway that the responsible landlord has knowingly ignored repair to, the fault will often fall to the landlord.
Q: Who is responsible for maintaining County and City ordinances?
This responsibility falls on the landlord, even though the tenant is in possession of the property. However, if the tenant is sited, it is not a case of tenant vs. landlord. The appeal must be taken up with City and County courts.
Housing Titles and Foreclosures
Q: What is wrongful foreclosure?
In Georgia, there are very strict rules that all agencies involved in the foreclosure of a property must follow.
- A notice of foreclosure must be made by advertisement and certified letter
- The certified mail notice must be mailed to the borrower at least thirty (30) days before the
proposed date of sale - The advertised notice must be available for four (4) consecutive weeks in a local newspaper
Not abiding by these policies will make the lender at fault for wrongful foreclosure and liable.
Q: What is the procedure for wrongful foreclosure?
Once a wrongful foreclosure has occurred, borrowers can file for several things:
- Loss of home
- Loss of credit
- Emotional damages
- Attorney and litigation expenses
- Any consequential damages or expenses incurred
It is important to note that all cases will require knowledge and proof of payments, so it is important to file these.
Boundary Disputes
Q: What are the different aspects of boundary disputes?
Boundary disputes most often encompass the following four (4) examples:
- Encroachments: such as fences that cross neighboring lines
- Improvements: any add-on extensions or landscaping that may cross neighboring lines
- Roadway or trails: that cross into neighbor’s property
- Incompatible uses: also considered “nuisances”, such as noise or bright lights
