Dispossessory Proceeding - GA

[gonfishing]

What is the name of your state (only U.S. law)? GA

My landlord just had be served a dispossessory proceeding.

For months we have had stuff go wrong in the house but he refuses to repair.
We have living with mold since beginning of summer.
The house had leaks prior to our move in.
Faulty A/C which he refused to repair. Finally got someone to check it because he would not and was told we needed a part replaced.
Informed him, he did nothing.

So barely functional A/C, humidity, leaks, maybe that caused mold, I don't know. This is very new territory for me.

So every month he demands rent, I pay rent and he disappears, no repairs.

I had enough refused to hand over rent until repairs were done.

He got mad, and asked me to leave at the end of the month. Today I get served this dispossesory.

Utility bill has been in his name and I pay with rent. In his rage, he gave me 3 days to switch over utility bill or he would disconnect it. I went down to switch it over.

CAN YOU LAW GURUS ADVICE ME PLEASE?

I know I need to show up to court but I need to know what I am supposed to be doing.

We plan to move anyway, because living in a mold situation is risky.

 

[justalayman]

how did you inform the landlord of any needed repairs?

 

[justalayman]

http://www.dca.ga.gov/housing/housingdevelopment/programs/downloads/Georgia_Landlord_Tenant_Handbook.pdf

I spoke to my landlord over a month ago about repairing a leak in the kitchen, but it still
has not been done. What can a tenant do to force a landlord to make repairs?

First, you must notify the landlord of the condition needing repair. It is best to give a
written dated notice informing the landlord of the problem. Keep a copy for yourself. Written
notice provides evidence that the landlord was aware of the need for the repair. If it is not
possible to give written notice, verbal notice is acceptable unless the lease requires written
notice. Be sure the lease provision for notice is followed. If your landlord fails to make the
requested repairs within a reasonable time after notice, you can either file a lawsuit against your
landlord for damages caused by his failure to repair or, if your landlord sues you, counterclaim
for damages due to the failure to repair. A tenant may also want to consider using repair and
deduct. The tenant cannot stop paying rent even if the landlord fails to make repairs.
What is repair and deduct?
Georgia courts have held that when a landlord fails to respond to repair requests after a
reasonable time, the tenant can have the required repair performed by a competent repair person
at a reasonable cost and deduct the cost from future rent. In determining what is a reasonable
time for the landlord to make the repair, consider the seriousness of the condition and the nature
of the repair. It is a good idea to notify the landlord in writing that you plan to use the "repair
and deduct" remedy before you arrange for the repair to be done. Written notice is the best
notice. The tenant should keep copies of all repair receipts and ask the repair person for a
statement detailing the work performed and the problem corrected. Keep copies of this
information. You may subtract these repair costs from your next month’s rent by sending copies
of the repair receipts along with the remaining amount of rent due to your landlord. When using
“repair and deduct” the tenant must be careful and spend only a reasonable amount on the repair.
The tenant should not improve the property, only repair the defect. The tenant should use only
qualified and licensed workers to make the repairs. If you do not feel that "repair and deduct"
will address your issue, you should consider contacting an attorney.

I did not see anything about withholding rent to encourage the landlord to make repairs so you might want to reconsider your strategy.

 

[Gail in Georgia]

Couple of things to keep in mind..

1. Georgia tends to be a very landlord friendly state.

2. A tenant simply cannot withhold rent. They can (as has been pointed out) go the "repair and deduct" route. They can place their rent in an escrow account with the court as a show of good faith that they intend to continue to pay rent once the repairs have been made. They can contact Code Enforcement to review the needed repairs with the goal of having them push the landlord to address them.

3. You have done (it appears) none of these things, including, perhaps, notifying the landlord in writing of these needed repairs and keeping a copy of such for themselves.

4. As such, if you respond to the dispossessory notice and you end up in court, you will have no real evidence to present to the court regarding your argument as to why you have withheld rent (including any argument that living in a mold situation is "risky").

5. It is quite likely the landlords request for the dispossessory (Georgia's version of an eviction) will be granted and even if you move, such a judgment will continue to remain on your credit history for long time.

6. Georgia does allow a tenant a one time chance of avoiding this by showing up in court with all of the owed rent plus any late fees plus court fees (in cash) at the time of the hearing to avoid such a judgment should you decide this is not something you would like on your record.

Gail

 

[gonfishing]

how did you inform the landlord of any needed repairs?

I have a stack of emails requesting him to do the repairs every month.

I also have responses from him.

Because he is often out of pocket email has been our principal mode of communication.

 

[gonfishing]

I made phone calls to get someone come check on the mold situation, I could not afford the cost. Mold diagnosis and remediation is expensive. Instead I got one of the home depot test kits and got a mold report.

Code enforcement was notified.

Whichever way this goes, I do not intend on staying in the house because I fear mold in the air. We already have a respiratory problem in the family which could start all over again.

Couple of things to keep in mind..

1. Georgia tends to be a very landlord friendly state.

2. A tenant simply cannot withhold rent. They can (as has been pointed out) go the "repair and deduct" route. They can place their rent in an escrow account with the court as a show of good faith that they intend to continue to pay rent once the repairs have been made. They can contact Code Enforcement to review the needed repairs with the goal of having them push the landlord to address them.

3. You have done (it appears) none of these things, including, perhaps, notifying the landlord in writing of these needed repairs and keeping a copy of such for themselves.

4. As such, if you respond to the dispossessory notice and you end up in court, you will have no real evidence to present to the court regarding your argument as to why you have withheld rent (including any argument that living in a mold situation is "risky").

5. It is quite likely the landlords request for the dispossessory (Georgia's version of an eviction) will be granted and even if you move, such a judgment will continue to remain on your credit history for long time.

6. Georgia does allow a tenant a one time chance of avoiding this by showing up in court with all of the owed rent plus any late fees plus court fees (in cash) at the time of the hearing to avoid such a judgment should you decide this is not something you would like on your record.

Gail

 

[Gail in Georgia]

These Home Depot/Lowes mold test kits are useless. They will show mold because mold is everywhere. Your argument should involve the two strains of mold that can, in some humans, trigger health issues. These kits do not show this.

If you are moving, why are you worried about this anyway? You do not appear overly worried about having a dispossessory on your record from what you are posting.

Gail

 

[STEPHAN]

I have a stack of emails requesting him to do the repairs every month.

I also have responses from him.

Because he is often out of pocket email has been our principal mode of communication.

I doubt that this will be enough in court. It is very easy to fake an e-mail. Next time use certified mail.

 

[gonfishing]

So what do you advice? Pay the rent and late fees before the 7 days runs out?

How do I get him to fix the repair situation?

That is what started all of this.

I cannot afford to do those repairs myself and beg him for a refund

 

[justalayman]

Pay the rent and sue the landlord for a failure to fulfill the obligations imposed on him by the state's laws.


If there is any sort of tenants assistance office operated by the government, contact them asap.

 

[Gail in Georgia]

From your posting, it appears you have received official documentation from the court that the landlord has filed for the dispossesssory and that you, as the tenant, have 7 days to respond to the court regarding this matter.

If you do not respond, the landlord will go back to the Clerk of Court, request his dispossessory warrant and the eviction will occur.

If you do respond to the court within the 7 day time period you have, a hearing will be set up where you both can present evidence as to why or why not this request for an eviction should or should not be granted. Again, if you do not wish this to be granted, you show up at the hearing with the rent money plus any late fees plus court costs in cash.

If you pay the rent PRIOR to this you make certain you get a receipt AND that the landlord does not continue with the eviction even after receiving this money. This is why it is often better to present these funds at the court hearing.

From now on, you request repairs IN WRITING to your landlord, keeping a copy of such for yourself as documentation that you have notified him/her of needed repairs.

You indicate you have notified Code Enforcement. How have they responded?

Gail

 

[gonfishing]

I have the inspection report. There are more than 20 violations listed.

All the maintenance requests were via email with responses from him.

Considering the type of person he is, I prefer to make any payments at the court house and not deal with him before them. I imagine he will be ticked off that he has been written up.

So since I have to answer the court within the 7 day window, do I include this info in the written answer when I go down to the Clerk?

The money is handed over at the hearing before the judge? When we finally appear in front of the judge?

For my countersuit, that is whole other filing situation with the clerk?

(I called LegalAid and they say I am not eligible)

 

[Gail in Georgia]

Your response to the court in writing (within the required 7 day time period) is that you do not agree with the request for the dispossessory and that you would like a court hearing to provide your side of the story. At the hearing you state you are willing to pay all that you owe and have the cash on hand at that time.

Familiarize yourself with this code for Georgia:


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.


Keep in mind that this court hearing is ONLY to address the issue of the dispossessory and NOT to hear your counter claim of a lawsuit. For that you would have to file a claim through the Clerk of Court for your own hearing.


Gail

 

[gonfishing]

I appreciate the advice.

Will return if I have questions.

I will also give updates on the final outcome.

Somebody out there might escape headaches reading this thread.

 

[gonfishing]

counterclaim

We have a courtdate coming up

For my countersuit, is it heard at the same hearing or do I file paperwork for a separate hearing.

I have gathered evidence as moving expenses continue to pile.

Spoke with the court clerk who said there is just One hearing.

I am confused?!?!?!?