2 Landlord-Tenant
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. O.C.G.A. § 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. O.C.G.A. § 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. B-Lee’s Sales Company, Inc. v. E.E. Shelton, Jr., et al., 141 Ga.App. 870, 234 S.E.2d 702 (1977) (a mutual agreement for a reduced rental payment amount, without notice of intent to revert to the original lease contract terms, created jury issue on intent as to permanent or temporary waiver).
B. Other statutory restrictions on terms in residential leases. O.C.G.A. § 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. O.C.G.A. § 44-7-13, -14; see O.C.G.A. § 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. Country Club Apartments, Inc. v. Scott, 246 Ga. 443, 271 S.E.2d 841 (1980); Barnes v. Pearman et al., 163 Ga. App. 790, 294 S.E.2d 619 (1982)(aff’d. Barnes v. Pearman et al., 250 Ga. 628, 301 S.E.2d 647 (1983); but see Carpet Central, Inc. v. Johnson, 222 Ga.App. 26, 473 S.E.2d 569 (1996) (approving a commercial lease provision requiring tenant to obtain insurance for property damages and waiving such damages); O.C.G.A. §. 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. O.C.G.A. § § 51-2-5(4); Ikomoni et al. v. Executive Asset Management, LLC et al., 309 Ga.App.81, 709 S.E.2d 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).
5. Ambiguous Contracts: “[t]he landlord-tenant relationship and innkeeper-guest relationship are mutually exclusive.” Efficiency Lodge, Inc. v. Neason, S22G0838, 2023 WL 4088727, in the Supreme Court of Georgia (June 21, 2023). Whether an extended-stay motel guest relationship converts to a landlord-tenant relationship requiring a dispossessory proceeding rather than invoking the innkeeper statute is a facts and circumstances issue to be decided based upon the evidence.
Efficiency Lodge, Inc. was released as this update was in its final stages, and could not be carefully scrutinized to provide more guidance here. Judges should review Efficiency Lodge, Inc. carefully to understand the factors they must consider at trial.
C. Victims of Family Violence. Effective July 1, 2018, as to tenancies created, modified, extended or renewed after that date only, a victim of family violence who has received a civil or criminal family violence order, may terminate a lease upon 30 days’ written notice. A copy of the order is required with the notice and a copy of a police report if such order was ex parte. Such tenant is liable only for rent through the effective date of the notice. Such victim of family violence may also terminate a tenancy without liability 14 or more days prior to occupancy. O.C.G.A. § 44-7-23.
2.12 Tenancy at Will
A. Definition:
Any rental agreement with no set date of termination is a tenancy at will. O.C.G.A. § 44-7-6.
B. Tenancy at Will Arises:
1. When no provision for the termination of the lease is included in the contract. O.C.G.A. § 44-7-61;
2. When there is a deficiency in the lease such as:
a. Lack of authority in the execution of a lease. Opportunities Industrialization Center of Atlanta, Inc. v. Whiteway Neon Ad, Inc., 146 Ga.App. 871, 247 S.E.2d 494 (1978)(equal dignity rule requires agent to have written authority to execute written contract)(reversed by Whiteway Neon-Ad Inc. v. Opportunities Industrialization Center of Atlanta, Inc., 243 Ga. 114, 252 S.E.2d 604 (1979)(corporate authority is sufficient for corporate agent).;
OR
b. The lease lacks mutuality Jane R. Goodman et al. v. A.A. Friedman et al., 117 Ga.App. 475(2), 161 S.E.2d 71 (1968)(where lease contract lacks mutuality, holding of tenants would be considered a tenancy at will);
OR
c. The lease is violative of the Statute of Frauds Cora B. Smith et al. v. Top Dollar Stores, Inc., 129 Ga.App. 60, 198 S.E.2d 690 (1973).
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. O.C.G.A. § 44-7-5; Smith et al. v. Abercrombie et al., 89 Ga.App. 129(3), 78 S.E.2d 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 Gully v. Glover, 190 Ga.App. 238, 240(2), 378 S.E.2d 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. Fred J. Morgan et al. v. James B. Maddox, Executor et al., 216 Ga. 816, 819, 120 S.E.2d 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. Hyman v. Leathers, 168 Ga.App. 112 (2), 308 S.E.2d 388 (1983); Steed v. Federal Nat. Mortg. Corp., 301 Ga.App. 801, 689 S.E.2d 843 (2009). If owner relinquishes possession, upon reentry, he is intruder. Durden v. Clack, 94 Ga. 278, 21 SE521 (1894). 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, supra.
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. William J. Dawkins, Georgia Landlord and Tenant Breach and Remedies with Forms, § 5-6, p. 87 (West 2007).
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. Id.
C. Tenant at Sufferance is also liable for reasonable rental for period of occupancy. Hall et al. v. VNB Mortgage Corporation, 170 Ga.App. 867, 318 S.E.2d 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. O.C.G.A. § 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. Carruth v. Carruth, 77 Ga.App. 131, 48 S.E.2d 387 (1948); Stanley v. Stembridge, 140 Ga. 750, 79 SE 842 (1913).
B. When it arises:
A tenant holding over occurs when:
1. The lease or rental agreement expires. Wig Fashions, Inc. v. A-T-O Properties, Inc., et al., 145 Ga.App. 325, 243 S.E.2d 526 (1978);
OR
2. The landlord terminates lease because the tenant has breached the contract. RCH Corp. v. Southland Investment Corp., 122 Ga.App. 815(1), 178 S.E.2d 766 (1970); Housing Authority of Atlanta v. Berryhill, 146 Ga.App. 374, 246 S.E.2d 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. Willis v. Harrell, 118 Ga. 906, 909, 45 S.E. 794 (1903); Ferguson et al. v. Bank of the South, et al., 164 Ga.App. 203(3), 296 S.E.2d 756 (1982); but see, Solon Automated Services, Inc. v. Corporation of Mercer University, 221 Ga.App. 856, 860, 473 S.E.2d 544 (1996). If the landlord receives rent and does not wish to create a tenancy at will, landlord must promptly return it to the tenant. The tenancy at will continues "the general terms and conditions of the lease" Mariner Healthcare, Inc. et al. v. Foster, 280 Ga.App. 406, 634 S.E.2d 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...
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