Landlords: Think Before You Change the Locks

A typical problem for a landlord involves the question of whether a tenant has abandoned the property or not.  You don't receive the rent from your tenant, so you go to the leased premises and investigate.  When you get there you discover that there are a couple of boxes of clothing, dishes, and a vacuum cleaner left in the house.  As a landlord you must be absolutely sure in the State of Georgia that the tenant has abandoned the property before you take any further action.  If the utilities are still on it’s a sign that you may need to investigate further. Make some inquires as to whether tenant is has moved to different location.  Then you must investigate to determine if it is appropriate to go ahead and take possession of the premises.

The major problem that I have seen and where I prevailed in several cases for tenants has been in this situation where the landlord changes the locks on the house or the apartment and locks the tenant out.  In Georgia, the law is very specific on how a tenant must be dispossessed from the property.  Georgia law states that if there is any doubt as to whether the tenant has abandoned the premises, then the landlord must file a legal action to terminate the tenancy and evict the tenant.  The landlord must prevail in the legal action and obtain a writ of possession before taking possession of the premises.  Once a landlord changes the locks on the leased premises, then he has assumed possession and control of the leased premises. You can’t follow up later with a lawsuit alleging damage to the premises if the tenant was deprived of his use of the premises and his ability to clean up or repair the premises. Once the landlord changes the locks the lease agreement is terminated and the landlord cannot demand any further rent from the tenant under the terms of the lease. Furthermore, when a landlord takes possession under these uncertain terms they open themselves up to punitive damages for performing an illegal eviction of the tenant which is closely linked to trespass.  If you have any doubt as to whether the tenant has abandoned or not, then the landlord should file an affidavit for dispossessory action in either the Magistrate court or State court of your county. You do this by first making a demand for possession of the premises. If you don’t know where the tenant is then tape the demand onto the door of the leased premises. If you know where the tenant is living now, send a letter to them making a demand for possession of the premises and terminating the lease.
 
The next step to take is to file a lawsuit to dispossess the tenant from the leased premises. If you cannot locate the tenant then have the sheriff serve the premises by tack and mail service with the dispossessory. After the lawsuit has been served the tenant has seven days to file an answer with the court in regards to your complaint. If the tenant files an answer with the court, the matter will be sent down for a hearing on the matter. The most common defense of a tenant is that the landlord failed to make repairs to the leased premises. If you prevail in your hearing the Judge will issue a Writ of Possession to the landlord. Before you take any further action you must wait seven days after the Writ is signed before you can act on it. All of this takes time, but it is far better than being sued by the tenant for performing an illegal eviction of the tenant or possibly for constructive eviction of the tenant.