Providing Fair Relief in Georgia Dispossessory Proceedings

• Publication year: 2016

Providing Fair Relief in Georgia Dispossessory Proceedings

Zack S. Thompson

Georgia State University College of Law, zackthompson14@gmail.com

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PROVIDING FAIR RELIEF IN GEORGIA DISPOSSESSORY PROCEEDINGS

Zack S. Thompson^*

Introduction

In August 2014, Fulton County Superior Court granted the new owner of 477 Peachtree Street in downtown Atlanta the ability to begin evicting the tenant homeless shelter that had occupied the property for eighteen years.¹ The largest shelter space in the southeastern United States, the Peachtree-Pine shelter provided services to an average of 700 men, women, and children daily, with as many as 650 sleeping there each night.² The shelter contended that the shelter's new landlord had gained title improperly by—fraud and collusion among a number of other acts—purchasing a note attached to the property; working to cut off the shelter's private funding and thus its ability to pay its rent, bills, and loan; and subsequently purchasing the property at foreclosure.³ Though the shelter stated valid claims for trial, claims such as wrongful foreclosure are not available defenses to a dispossessory proceeding.⁴ For other reasons,

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the Georgia Court of Appeals reversed the dispossessory ruling and effectuated a stay until the trial court resolved the issue of title.⁵ However, the shelter's financial straits also affected its ability to pay rent pending adjudication.⁶ The shelter was therefore unable to retain legal possession while adjudicating its claims.⁷

In contrast, Laura Westray, writing about the dangers of overly burdensome eviction requirements, describes Lena Schnuck, an eighty-nine-year-old owner of an eight-unit apartment building.⁸ Lena, after suffering a stroke, was unable to evict a tenant without enduring "costly and time consuming court preparations" while waiting for the required trial.⁹ In reality, heartless slumlords are rare; "the great majority of owners are merely attempting to earn a reasonable return on their investments by providing a vital service to our society."¹⁰ Most landlords, like Lena, seek eviction in good faith.¹¹

Summary eviction processes must provide a swift, narrow avenue through which property owners may evict tenants at sufferance without turning to self-help or a full civil suit.¹² However, such an

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action inherently struggles to provide parties with full legal redress, especially considering property's uniquely equitable attributes.¹³ Georgia's dispossessory actions are no different, limiting both parties' range of options in the interest of providing a speedy alternative to self-help or other improper eviction procedures.¹⁴

This Note argues for a Georgia dispossessory action scheme that, when necessary, is both broader for defendants and quicker for plaintiffs. Part I examines the current state of dispossessory actions in Georgia.¹⁵ Part II provides a critical analysis of Georgia's dispossessory action scheme, particularly regarding defendants' available defenses and rent requirements¹⁶ and plaintiffs' access to timely remedies.¹⁷ Finally, Part III proposes solutions that (1) better equip defendants to legitimately challenge dispossessory actions and (2) provide property owners with appropriately swifter remedies.¹⁸

I. Background

Tenancies at sufferance occur most often when a tenant or property owner does not vacate a property after losing possessory rights to the property by way of a terminated lease or foreclosure.¹⁹ Summary

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proceedings to obtain possession from a tenant at sufferance exist in all states.²⁰ States name these actions by a current property owner against a tenant at sufferance differently; labels include "summary process," "summary dispossession," and "forcible entry and detainer. ²¹ Georgia denotes such actions with the term "dispossessory."²² Dispossessory actions nationwide provide property owners with streamlined title determination, often producing results more quickly than other adjudicative processes.²³ Georgia's dispossessory proceeding is similarly streamlined compared to other civil proceedings.²⁴

O.C.G.A. §§ 44-7-49 to -59 exclusively control dispossessory action procedure in Georgia.²⁵ Property owners seek, through dispossessory proceedings, a "writ of possession," which the court may issue to give the property owner unconditioned and unrestricted possession of the property.²⁶ After initially demanding possession of the property from a tenant at sufferance, property owners may

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immediately make an affidavit of the facts if the tenant at sufferance "refuses or fails to deliver possession when so demanded."²⁷ A copy of a summons and the affidavit is then "personally served upon the defendant."²⁸ Within seven days from the date of service, the defendant may answer with "any legal or equitable defense or counterclaim."²⁹ The court may enter a default judgment if the defendant does not answer.³⁰ If the dispossessory action is for nonpayment of rent, a defendant's tender of "all rents allegedly owed plus the cost of the dispossessory warrant" is a complete defense.³¹ If the defendant does answer, a trial of the issues ensues.³² If the property owner prevails, the court issues a writ of possession, "effective at the expiration of seven days after the date such judgment was entered," that authorizes "the removal of the tenant or his or her personal property or both from the premises."³³ If the

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tenant prevails, "he shall be entitled to remain in the premises and the landlord shall be liable for all foreseeable damages shown to have been caused by his wrongful conduct."³⁴

Georgia has established narrow avenues through which a tenant at sufferance may defend against a dispossessory action, particularly post-foreclosure.³⁵ In fact, Georgia courts have recognized only one appropriate rebuttal to dispossessory actions: a fundamental lack of landlord-tenant relationship.³⁶ A defendant may prove the lack of a landlord-tenant relationship by presenting fraudulent deeds or other evidence that the plaintiff does not actually own the property.³⁷ Georgia courts distinguish these challenges from those that attack the means by which the plaintiff obtained ownership of the property, such as wrongful foreclosure.³⁸ Defendants are left to address the

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latter in separate actions, although these counterclaims are still considered compulsory and carry the risk of claim preclusion.³⁹

In short, a defendant may assert that a plaintiff does not own the property and may retain possession while adjudicating that issue.⁴⁰ However, defendants are left to assert that plaintiffs should not own the property in a separate action after losing possession of the property.⁴¹ This dichotomy applies even where a counterclaim like wrongful foreclosure, if valid, would place the defendant in possession of the property and therefore abolish the defendant's status as a tenant at sufferance⁴²

Additionally, even when a defendant presents an appropriate defense, Georgia law requires that the defendant pay rent into the court registry pending resolution or automatically lose the dispossessory action and possession of the property.⁴³ Likewise,

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defendants may appeal any dispossessory judgment provided that the defendant pays rent into the registry until the issue has been determined on appeal.⁴⁴ Failure to pay rent into the registry rids a defendant of the right to remain in possession; however, the court must still determine appropriate issues, because the court may restore possession to a defendant or appellant if the adjudicated issues warrant.⁴⁵

However limited defendants' options in dispossessory actions are, property owners face a number of hardships as well. If the defendant does not answer, O.C.G.A. § 44-7-53(a) allows the court to issue a writ of possession without a jury trial, any further evidence, or any hearings.⁴⁶ Here, the plaintiff is entitled to a default judgment much like in any other civil action, only much more quickly.⁴⁷ A plaintiff in

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a dispossessory proceeding may obtain an enforceable judgment within fourteen days, whereas a plaintiff in a civil suit will typically do so in fifty-five days.⁴⁸ However, if the defendant does answer, § 44-7-53(b) requires a "trial of the issues."⁴⁹ Thus, a court must conduct a trial even if a defendant answers and presents no evidence of any genuine issue.⁵⁰ Though § 44-7-53 provides that "every effort should be made by the trial court to expedite a trial of the issues," property owners are still left subject to the scheduling availabilities of the courts, more attorneys' fees, and further expenses of time and effort before the court may issue a judgment.⁵¹ Further, such a trial may be necessary even when a defendant has presented no evidentiary basis with which to dispute any of the plaintiff's claims.⁵²

Thus, Georgia dispossessory proceedings currently occupy a middle ground that often denies either party an entirely appropriate remedy. A defendant who knows the plaintiff holds invalid title through a wrongful foreclosure has no ability to remain in possession of the property while proving the claim.⁵³ Even if a defendant successfully defends or appeals, he must unequivocally pay rent into the court registry without regard for whether a plaintiff's alleged

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wrongdoings have thwarted defendant's ability to do so.⁵⁴ Conversely, a defendant may answer a dispossessory action with empty allegations and no evidentiary basis, yet a plaintiff may not obtain relief through any summary judgment, and the court must schedule and conduct a trial of the issues in full accordance with civil procedures.⁵⁵ A solution that, when necessary, (1) better equips defendants to legitimately challenge dispossessory actions and (2) provides property owners with appropriately swifter remedies would allow courts to conduct either a full and fair trial or none at all, thus providing as complete a remedy as possible to the...