Moreover - and as will be discussed in a later article - whether to terminate a lease due to a monetary default requires strategic analysis. This quirk of Georgia law becomes even more significant if the landlord terminates the lease due to the tenant’s failure to pay rent. However, if the landlord seeks to evict the tenant due to a non-monetary default - including for the failure to surrender possession after the lease expires or terminates - then the landlord must wait until after the lease expires or terminates before sending the demand for possession. If the landlord wants to evict the tenant for failing to pay rent, it may send a default letter that both demands payment and demands possession if the tenant fails to cure its default.
This distinction will dictate the timing of the demand for possession. In Georgia, the two primary bases for commencing an eviction action are (1) the tenant’s failure to pay rent and (2) the tenant’s refusal to vacate the premises following the expiration or earlier termination of the lease. Consider the Timing of the DemandĪdditionally, the timing of the demand for possession is important. A written demand for possession will eliminate the classic “he said, she said” swearing contest that may give a sympathetic judge a basis to deny an order of eviction. That way, the landlord will be able to show the judge that it demanded possession, rather than having to settle for simply telling the court that it did so. But, for obvious reasons, a written demand is preferable. In Georgia, a landlord need not make its demand for possession in writing it may do so orally. Thus, in addition to demanding payment, it is critical that a landlord also demand that the tenant vacate the premises if it fails to cure its default. But unless you have actually demanded possession of the premises - as opposed to simply demanding payment of the past due amount - your case is on shaky ground. Your lease may define an event of default as including the tenant’s failure to pay rent when due or, alternatively, within a certain number of days following written notice from the landlord. Bolster Your Position With a Written Demand
Indeed, in this state, a prior demand for possession is an absolute prerequisite to a successful eviction action. Rather, by statute, before filing a dispossessory case, a Georgia landlord must also demand that the tenant surrender possession of the leased premises. At least under Georgia law, declaring your delinquent tenant to be in default, standing alone, is insufficient. Fed up, you decide it’s time to file an eviction action. You’ve sent multiple letters advising the tenant of its default and demanding payment in full, all to no avail.
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