Answeing a Dispossessory Warrent

[Ivan198]

What is the name of your state (only U.S. law)? Georgia, yes.

Greetings

I have been served with a dispossessory warrant, which is due to be answered on October 11th (tomorrow). I have not been able to offer a tender defense, as I will not have the monies required (2 month’s rent 990.00, late fees 195.00 and court cost 190.00 plus service fees and processing fees) by the 11th. I was recently laid off from a job but have since been able to find other employment. My new job pays on a monthly basis (I won’t receive a check from them until next month). I am currently looking for a second job that pays weekly or bi-weekly to assist with gathering enough money to offer a payment by the date of the hearing, if possible. I have a list of maintenance issues that have not been addressed by the apartment complex since we (wife and 5 year old daughter) moved in. In any event, since I do plan on answering the dispossessory warrant, I would like to have a better idea on the general terms or direction for formulating the answer. What information should be included? What information about my situation should be emphasized and what should be omitted or deferred until the hearing (if I am not able to negotiate an alternate solution with the apartment complex before then; they have stated they would accept a partial payment)? Also would their acceptance of a partial payment automatically void the terms of the dispossessory warrant after an answer has been filed and a court date issued. (?)

Thanks in advance.

 

[Gail in Georgia]

Quite honestly, what viable reason COULD you give to avoid an eviction based on failure to pay rent for two months? If your excuse is that the landlord failed to address repair issues, you would need to provide evidence to the court that you contacted your landlord IN WRITING regarding these repairs, allowed a reasonable amount of time for them to address these repairs, again notified them that these repairs were not made and then did the repair, DEDUCTING the amount of the cost of these from your rent and providing receipts for the cost of such.

Even if they accept partial payment you need to attend any court hearing to avoid the request for the warrant being granted.

Georgia does allow a tenant facing such an eviction some protection by paying ALL that they owe (plus court costs) within 7 days of receiving this summons. This can only be done once in any 12 month period:

TITLE 44 - PROPERTY
CHAPTER 7 - LANDLORD AND TENANT
ARTICLE 3 - DISPOSSESSORY PROCEEDINGS
§ 44-7-52 - When tender of payment by tenant serves as complete defense
O.C.G.A. 44-7-52 (2010)
44-7-52. When tender of payment by tenant serves as complete defense


(a) Except as provided in subsection (c) of this Code section, in an action for nonpayment of rent, the tenant shall be allowed to tender to the landlord, within seven days of the day the tenant was served with the summons pursuant to Code Section 44-7-51, all rents allegedly owed plus the cost of the dispossessory warrant. Such a tender shall be a complete defense to the action; provided, however, that a landlord is required to accept such a tender from any individual tenant after the issuance of a dispossessory summons only once in any 12 month period.

(b) If the court finds that the tenant is entitled to prevail on the defense provided in subsection (a) of this Code section and the landlord refused the tender as provided under subsection (a) of this Code section, the court shall issue an order requiring the tenant to pay to the landlord all rents which are owed by the tenant and the costs of the dispossessory warrant within three days of said order. Upon failure of the tenant to pay such sum, a writ of possession shall issue. Such payment shall not count as a tender pursuant to subsection (a) of this Code section.

(c) For a tenant who is not a tenant under a residential rental agreement as defined in Code Section 44-7-30, tender and acceptance of less than all rents allegedly owed plus the cost of the dispossessory warrant shall not be a bar nor a defense to an action brought under Code Section 44-7-50 but shall, upon proof of same, be considered by the trial court when awarding damages.
Disclaimer: These codes may not be the most recent version. Georgia may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official source.


Gail

 

[Ivan198]

Quite honestly, what viable reason COULD you give to avoid an eviction based on failure to pay rent for two months? If your excuse is that the landlord failed to address repair issues, you would need to provide evidence to the court that you contacted your landlord IN WRITING regarding these repairs, allowed a reasonable amount of time for them to address these repairs, again notified them that these repairs were not made and then did the repair, DEDUCTING the amount of the cost of these from your rent and providing receipts for the cost of such.

Even if they accept partial payment you need to attend any court hearing to avoid the request for the warrant being granted.

Georgia does allow a tenant facing such an eviction some protection by paying ALL that they owe (plus court costs) within 7 days of receiving this summons. This can only be done once in any 12 month period:

TITLE 44 - PROPERTY
CHAPTER 7 - LANDLORD AND TENANT
ARTICLE 3 - DISPOSSESSORY PROCEEDINGS
§ 44-7-52 - When tender of payment by tenant serves as complete defense
O.C.G.A. 44-7-52 (2010)
44-7-52. When tender of payment by tenant serves as complete defense


(a) Except as provided in subsection (c) of this Code section, in an action for nonpayment of rent, the tenant shall be allowed to tender to the landlord, within seven days of the day the tenant was served with the summons pursuant to Code Section 44-7-51, all rents allegedly owed plus the cost of the dispossessory warrant. Such a tender shall be a complete defense to the action; provided, however, that a landlord is required to accept such a tender from any individual tenant after the issuance of a dispossessory summons only once in any 12 month period.

(b) If the court finds that the tenant is entitled to prevail on the defense provided in subsection (a) of this Code section and the landlord refused the tender as provided under subsection (a) of this Code section, the court shall issue an order requiring the tenant to pay to the landlord all rents which are owed by the tenant and the costs of the dispossessory warrant within three days of said order. Upon failure of the tenant to pay such sum, a writ of possession shall issue. Such payment shall not count as a tender pursuant to subsection (a) of this Code section.

(c) For a tenant who is not a tenant under a residential rental agreement as defined in Code Section 44-7-30, tender and acceptance of less than all rents allegedly owed plus the cost of the dispossessory warrant shall not be a bar nor a defense to an action brought under Code Section 44-7-50 but shall, upon proof of same, be considered by the trial court when awarding damages.
Disclaimer: These codes may not be the most recent version. Georgia may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official source.


Gail

[HR][/HR]

Greetings Gail, thanks for your response…

I have a “reason”; being recently laid off and not receiving a paycheck from a new job until next month. However, whether this is a “viable” reason is not where my question stems from, as this is the only reason I have, as it is the truth. I have provided the apartment complex with a 2nd walk through document 2 days after moving in and they have not responded. I have not used this issue as a case for rent withholding with them, as my intent was not to withhold rent. Other circumstances contributed to that. Since I do plan to answer the dispossessory warrant, in hopes that I would be able to remedy the situation before or during the hearing, I wanted to have a better idea on the proper wording, terms or direction that should be included in the answer.

Thanks again

 

[sandyclaus]

[HR][/HR]

Greetings Gail, thanks for your response…

I have a “reason”; being recently laid off and not receiving a paycheck from a new job until next month. However, whether this is a “viable” reason is not where my question stems from, as this is the only reason I have, as it is the truth. I have provided the apartment complex with a 2nd walk through document 2 days after moving in and they have not responded. I have not used this issue as a case for rent withholding with them, as my intent was not to withhold rent. Other circumstances contributed to that. Since I do plan to answer the dispossessory warrant, in hopes that I would be able to remedy the situation before or during the hearing, I wanted to have a better idea on the proper wording, terms or direction that should be included in the answer.

Thanks again

The problem with your reason is that it's the same as "guilty with explanation". It violates the statute because you didn't pay the rent that was owed, and you don't have the ability to cure the default by paying what's owed now. The LL doesn't benefit by allowing you to stay through next month because you'll STILL be behind on rent (since next month, you'll still owe for next month, until the FOLLOWING month).

You don't have a good reason for the judge NOT to issue the dispossessory warrant because you can't pay. Sure, you could answer the warrant and delay the inevitable for a little while. The court will order a hearing, and you won't be any better off then than you are now. That will be precious time you've wasted - time that you could be using to find a new place to live and packing up, getting ready to move out as soon as that dispossessory is issued (and it WILL be, since you can't cure your default).

 

[Ivan198]

The problem with your reason is that it's the same as "guilty with explanation". It violates the statute because you didn't pay the rent that was owed, and you don't have the ability to cure the default by paying what's owed now. The LL doesn't benefit by allowing you to stay through next month because you'll STILL be behind on rent (since next month, you'll still owe for next month, until the FOLLOWING month).

You don't have a good reason for the judge NOT to issue the dispossessory warrant because you can't pay. Sure, you could answer the warrant and delay the inevitable for a little while. The court will order a hearing, and you won't be any better off then than you are now. That will be precious time you've wasted - time that you could be using to find a new place to live and packing up, getting ready to move out as soon as that dispossessory is issued (and it WILL be, since you can't cure your default).

[HR][/HR]

Hi Sandy,

I understand where you are coming from, it’s just that the property manager is not making it so “cut and dry”, so-to-speak. She was here two days ago and stated that they are willing to work with us, if we can make a payment of half what is owed, she would stop the warrant. As this was only a verbal agreement, I wanted to negotiate a written agreement before the hearing. However, aside from any agreements that where made with the apartment complex, I wanted to still follow through with answering the warrant, as an additional cover. Next month is not the soonest I would be able to make a payment, it just the soonest that steady income would be received. I have picked up a couple temp jobs (still looking for a more permanent second job that I can use to offset rent payments and bills, until I fully and safely adjust my finances to a monthly pay scale) in which I should receive a payment from before the hearing. I should be able to make a full payment by the hearing.
If it was just myself, packing up and leaving would be an easier decision, however we just moved here from another state and that was difficult enough for my daughter and I wanted to at least attempt to remedy this situation before having to move her again.
I understand the odds against the situation, however since I am choosing to attempt to remedy it anyway, I wanted advice on how to best go about it. For instance, starting with the answer, what information is usually included, what should be avoided? Should the tone be more personal (just moved to GA, recently laid off, have a new job, daughter, etc…) or just strait forward facts (currently working, negotiating with apartment complex, etc…) or a mixture of both (?)

Thanks

 

[Gail in Georgia]

Ivan

You need to be aware that Georgia tends to be a very landlord friendly state. Frankly, most judges don't care that you just moved to Georgia, have a daughter, got laid off, etc. etc.. They've heard this all before. They handle a ton of eviction cases and they have little patience to read a persons life history,

All you really need to do is respond to the notice saying you disagree with managements request for this warrant. If you wish, you can state that you are working out a deal with management whereby you can pay what you owe in rent. ANY response to this notice will mean that the case will then go forward to a court date where you can present you case before the judge.

If you don't respond by today, the court will assume you agree with managements request and they will simply be able to go back to the Clerk of Court and request possession of the property without going through a court hearing.

In other words, this is NOT the time to present your evidence as to why you should not be evicted but rather to simply respond that you disagree with managements request for this warrant. Whether you respond or not (not WHAT you respond) will determine whether the case goes forward to a court hearing or not.

I hope this makes sense.

Gail