2 Landlord|Tenant

JurisdictionGeorgia

2. LANDLORD/TENANT

2.1 TYPES OF LANDLORD-TENANT RELATIONSHIPS

2.11 Contracts - Oral and Written

A. Statute of Frauds:

1. An oral contract between a landlord and tenant is valid if the time does not exceed one year [OCGA 44-7-2(a)].

2. If the rental period exceeds one year, the contract must be in writing or the Statute of Frauds is violated [OCGA 44-7-2(a)] (see 2.12B2).

3. If contract not required to be in writing, amendment may be oral; even if contract amendment is required to be in writing, oral amendment plus acceptance of part performance amends contract [141 Ga.App. 870, 234 SE2d 702 (1977) ("do the best you can" created jury issue on intent as to permanent or temporary waiver)].

B. Other restrictions on terms in residential leases [OCGA 44-7-2]:

1. No waiver of obligation of landlord to repair and responsibility of landlord for damages caused by failure to repair or defective construction [OCGA 44-7-13, -14; see OCGA 13-8-2 (prohibiting contracts to indemnify against claims for own sole negligence in construction, maintenance of building)].

NOTE - An exculpatory or indemnity clause attempting to avoid the landlord's liability for negligence, especially the liability for defects in construction, is void as against public policy in both commercial and residential leases. [246 Ga. 443, 271 SE2d 841 (1980); 163 Ga. App. 790, 294 SE2d 619 (1982), affd 250 Ga. 628, 301 SE2d 647 (1983); but see 222 Ga.App. 27, 473 SE2d 569 (1996) (approving a commercial lease provision requiring tenant to obtain insurance for property damages and waiving such damages); OCGA. 13-8-2 (allowing contracts requiring obtaining insurance)]. Of course, in a commercial lease the contract may provide for the tenant to repair.

2. No waiver of compliance with dispossessory or distress procedures permitted or provisions governing security deposits[OCGA § 51-2-5(4); 309 Ga.App.81, 709 SE2d 282 (2011)].

3. No waiver of housing code ordinances [O.C.G.A. 36-61-11].

4. No attorney's fee provision unless reciprocal. (see also 2.25D, NOTE).

2.12 Tenancy at Will

A. Definition:

Any rental agreement with no set date of termination is a tenancy at will [OCGA 44-7-6].

B. Tenancy at Will Arises:

1. When no provision for the termination of the lease is included in the contract [OCGA 44-7-61;

2. When there is a deficiency in the lease such as:

a. Lack of authority in the execution of a lease [146 Ga.App. 871, 247 SE2d 494 (1978); 117 Ga.App. 475, 161 SE2d 71 (1968)];

OR

b. The lease lacks mutuality [117 Ga.App. 475(2), 161 SE2d 71 (1968)1;

OR

c. The lease is violative of the Statute of Frauds [175 Ga. App. 676, 332 SE2d 331 (1985)1.

In the above situations, the tenant in possession is deemed to be a tenant at will.

C. Implied terms of contract:

1. Rental at current rate of payment continues until either the landlord gives sixty days notice to the tenant (to terminate or change rent) or the tenant gives thirty days notice to the landlord to terminate the lease.

2. In the absence of any agreement as to payment of rent, an obligation to pay a fair and reasonable rent is implied from occupation of the premises by the tenant [OCGA 44-7-5; 89 Ga.App. 129(3), 78 SE2d 826 (1953)].

3. When tenancy at will follows expiration of lease, general terms and conditions specified in the lease continue, except so far as modified by mutual agreement - such general terms include provisions with respect to rent and repairs [190 Ga.App. 238, 240(2), 378 SE2d 411 (1989)].

2.13 Tenant at Sufferance

A. Definition:

A tenancy at sufferance arises when one comes into possession of land by lawful right, whether as a tenant or otherwise, but wrongfully remains in possession [216 Ga. 816, 819, 120 SE2d 183 (1961)].

NOTE - After the bank conducts a sale under power (i.e., forecloses) due to default on a deed to secure debt, a prior owner remaining in possession of property is a tenant at sufferance and may be dispossessed [168 Ga.App. 112 (2), 308 SE2d 388 (1983)1;Steed v. Federal Nat. Mortg. Corp., 301 Ga.App. 801, 689 SE2d 843 (2009)]. If owner relinquishes possession, upon reentry, he is intruder [ Durden v. Clack, 94 Ga. 278, 21 SE521 (1894); Steed]. Likewise, if owner sub-lets a separate unit, the sub-tenant is the tenant at sufferance of that unit, and the owner is an intruder if he enters and takes possession after the foreclosure [Steed].

B. A Tenancy at Sufferance Cannot be Created by Contract:

1. A tenancy at sufferance may not be expressly created by an agreement since the very essence of such a tenancy involves the absence of consent or agreement by the landlord [Dawkins, Georgia Landlord and Tenant Breach and Remedies, § 5-6, p. 57].

2. However, the parties could agree that upon the occurrence of a certain contingency, the tenant's status is that of a tenant at sufferance [Dawkins, Georgia Landlord and Tenant Breach and Remedies, § 5-6, p. 57].

C. Tenant at Sufferance is also liable for reasonable rental for period of occupancy [170 Ga.App. 867, 318 SE2d 674 (1984)] (but if landlord accepts rent will create tenancy at will - see 2.14C); i.e., landlord can sue for rent, but can't accept voluntarily and then dispossess.

D. Determination whether tenant is Tenant at Will or Tenant at Sufferance is for Dispossessory Court and is a question of fact. Other proceedings regarding propriety of foreclosure do not determine character of tenancy. Oral agreement allowing tenant to remain may create Tenancy at Will [Drury v. Security State Bank, 328 Ga. App. 39; 759 S.E.2d 635 (2014)].

2.14 Tenant Holding Over

A. Definition:

1. A tenant holding over is a tenant who holds possession of the property over and beyond the term for which the premises were rented or leased to the tenant [OCGA 44-7-50].

2. In the absence of the landlord's consent, or a contractual agreement to the contrary, a tenant holding over is considered a tenant at sufferance [77 Ga.App. 131, 48 SE2d 387 (1948); 140 Ga. 750, 79 SE 842 (1913)].

B. When it arises:

A tenant holding over occurs when:

1. The lease or rental agreement expires [145 Ga.App. 325, 243 SE2d 526 (1978)];

OR

2. The landlord terminates lease because the tenant has breached the contract [122 Ga.App. 815(1), 178 SE2d 766 (1970); 146 Ga.App. 374, 246 SE2d 406 (1978)].

C. When a Tenant Holding Over or At Sufferance Becomes a Tenant at Will:

A tenant at sufferance becomes a tenant at will if the landlord consents to his/her remaining in the property, including when the landlord demands or accepts rent or commits any other affirmative action which would give rise to the inference that landlord has given permission for the tenant to remain in possession [118 Ga. 906, 909, 45 S.E. 794 (1903); 164 Ga.App. 203(3), 296 SE2d 756 (1982); but see 221 Ga.App. 856, 860, 473 SE2d 544 (1996)]. If the landlord receives rent and does not wish to create a tenancy at will, he/she must promptly return it to the tenant. The tenancy at will continues "the general terms and conditions of the lease" [280 Ga.App. 406, 634 SE2d 162 (2006) (does not include right of first refusal to purchase or re-lease property at expiration)].

NOTE - Accepting rent after filing dispossessory for holding over will not by itself create tenancy at will or stop landlord from obtaining writ [154 Ga. 581 (1922); 167 Ga.App. 786, 307 SE2d 687 (1983)]. However, accepting rent after filing a dispossessory for non-payment of rent can be fatal to the claim (see also 2.33B).

2.15 Citations: STATUTES

Estate for years does not create landlord tenant relationship [OCGA 44-6-10].

Lease of less than 5 years does not create estate for years unless contract provides to the contrary [OCGA 44-7-1].

Rental contract must name someone to receive notices and lawsuits; if not, the tenant may serve the person signing the contract [OCGA 44-7-3].

Tenant cannot generally sublease without consent of landlord [OCGA 44-7-1].

Citations: CASES

Assignment provision - where written consent is required for assignment, landlord need not have reason for withholding consent unless lease provides consent cannot be unreasonably withheld [270 Ga.App. 90, 606 SE2d 13 (2004)].

Cancellation - time of the essence - in cancelling lease, inadvertent failure to enclose required cancellation fee with initial notice of cancellation made notice ineffective where lease provided "time is of the essence" [286 Ga.App. 673, 649 SE2d 733 (2007)].

Cooperative housing association (where members own stock in cooperative which owns property) may bring dispossessory for failure to pay maintenance fees against member/stockholder [213 Ga.App. 218, 444 SE2d 112 (1994)].

Early notice - Notice which is untimely due to being too early may be OK [221 Ga.App. 856, 473 SE2d 544 (1996)].

Early termination option may be precluded when tenant is in breach of lease [309 Ga.App. 172, 709 SE2d 858 (2011) (repair duty in commercial lease)].

Family tenancy - landlord-tenant relationship between landowner and sister occupant where no written lease, no rent paid, landowner retains key, stores personal property there, and lives in adjacent structure on same property [287 Ga.App. 483, 651 SE2d 810 (2007)]. Landlord not responsible for tenant's negligence as a landlord not in possession.

Gratuitous tenancy "until the second coming of Christ" was a tenancy at will, and landlord was entitled to rent upon 60 days notice [232 Ga.App. 415, 501 SE2d 846 (1998)]. Gratuitous tenant permitted to bolt portable building to ground at city airport was tenant at will [278 Ga.App. 149, 628 SE2d 117 (2006)].

Guarantor for lease liable for any extensions pursuant to the terms of the lease, including extension of lease by holding over, where guarantee provides it terminates only upon full payment of all sums reserved under the lease [269 Ga.App. 249, 603 SE2d 756 (2004)].

Implied covenant - all leases have an implied covenant of good faith and fair dealing - when tenant's use of property requires zoning variance which expires during lease, landlord required to apply for extension despite contract...

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